Dear Sirs: Your favor of the inst. is received, with inclosures, as stated. I inclose for collection and credit bills as stated below. Respectfully yours, William H. Chase, Cashier." Thereupon follows an itemized statement of checks, drafts, etc., naming the bank where payable, the city where such bank is located, and the amount of the checks, drafts, etc. All above the itemized statement in the letter was in print, except the address, "Messrs. Wilkinson & Co." Thereupon plaintiff, upon its books, charged to Wilkinson & Co. the various drafts, checks, etc., thus forwarded to them, and upon the credit side of their account credited them for whatever moneys were remitted to and received by the plaintiff from Wilkinson & Co. The charges against Wilkinson & Co were made upon the ledger of the plaintiff day by day, as the checks, drafts, etc., were sent, and on the days they were sent. Upon receipt by Wilkinson & Co. of the checks, drafts, etc., such of them as were payable on demand were immediately, upon their receipt, credited to the account of the plaintiff kept upon the books of Wilkinson & Co. for their face value. Such paper as was not payable upon demand, but had some time to run, was not entered upon the accounts of the plaintiff until it was actually paid. Such of the checks, bills and notes as were payable at banks of the city of Syracuse were thereupon collected by Wilkinson & Co. through the clearing-house. If any of the paper however was protested, it was charged back upon the books of Wilkinson & Co. to the plaintiff, and returned to it, and the expenses of protest charged to plaintiff. Such of the paper received by Wilkinson & Co. from the plaintiff as was payable at banks out of the city of Syracuse was forwarded by Wilkinson & Co. to their own correspondents at the cities and vil lages where such payments were to be made, and Wilkinson & Co. received from them the proceeds of such paper when collected. On Thursday of each week Wilkinson & Co. remitted to the plaintiff, by a draft on New York, the amount standing to the credit of the plaintiff upon their books up to that time, less about three-sixteenths of one per cent for their services. These remittances were generally made in the morning, regardless of whether Wilkinson & Co. had at the time actually received the proceeds of all the checks, drafts, etc., which then stood upon its book credited to the plaintiff. This manner of doing business had been carried on for a number of years prior to the failure of Wilkinson & Co., and was understood by the plaintiff, and was the existing arrangement. In pursuance of this arrangement, the plaintiff, on and for a number of days prior to December 8, 1884, forwarded to Wilkinson & Co. various drafts, checks, and notes, indorsed by the plaintiff in the manner above described, inclosed in letters in the form specified, amounting in all to $14.260.36, all of which, except time collections amounting to $438.67, were credited to the plaintiff upon their books. From this total Wilkinson and Co., prior to December 9, 1884, had sent various sums for collection to other agents, leaving a balance of $13,822.43 to be accounted for. Of this sum there had been paid to, and received by, Wilkinson & Co. on and prior to December 9, 1884, the sum of $9,195.50, which sum was received by Wilkinson & Co. in divers sums from December 4 to December 9, 1884, both dates inclusive, and no part of that sum has been paid to the plaintiff, but all of it was paid out by Wilkinson & Co. in due course of basiness before December 9, 1884. On the 9th of December, 1884, Wilkinson & Co. executed and delivered to the defendant, Charles E. Hubbell, a general assignment for the benefit of their creditors of their property, both real and personal, and Hubbell duly accepted the trust created, and duly qualified as such assignee, and took possession thereunder on the morning of December 10, 1884, said assignment being duly recorded on the 10th day of December, 1884. Between the execution and delivery of the assignment and the 20th of February, 1885, Hubbell, as such assignee, received of the checks, drafts, etc., sent by plaintiff to Wilkinson & Co. the sum of $4,626.83, being the balance of said sum of $13.822.43. The defendant remitted to the plaintiff $438.67 of above amount, being proceeds of time paper sent for collection, as to which a different practice had prevailed, but defendant, Hubbell, as such assignee, refused to pay the balance of said $4,626.83, being the sum of $4,188.16, to the plaintiff. Prior to a notice of the plaintiff's claim served on defendant, Hubbell, December 26, 1884, he had, as assignee of Wilkinson & Co., received from the entire estate the sum of $10,903.36, which sum included all but $295.48 of the above-named amount, $4,198.16; and the assignee, prior to receiving the notice, had paid out in the management of the estate, and in a dividend to the preferred creditors in the assignment, the sum of $10,548.57, leaving a balance of $354.79, the dividend being the sum of $10,001.71, and being made in pursuance of an order of the County Court of Onondaga county. The dividend paid by the assignee to the preferred creditors of Wilkinson & Co. was made by him in accordance with the provisions of the assignment to him, and under an order of the county judge of Onondaga county, dated December 23, 1884. which directed and authorized him to make a dividend of ten per cent upon the first preferred claims mentioned in the assignment. All of the payments were made by the defendant, Charles E. Hubbell, as assignee of Wilkinson & Co., in good faith, and without any notice or knowledge of any claims made by the plaintiff on any of the money received by him, and without knowledge of any claim made by the plaintiff that the title to any portion of the moneys, which were the proceeds of checks, drafts, etc., sent by the plaintiff to Wilkinson & Co., was claimed to be vested in it. After the assignee had paid out the money, and on the 26th day of December, 1884, the plaintiff for the first time made any claim, or served any notice upon the assignee of any claim, to any of the moneys, drafts, checks or securities received by Wilkinson & Co. from the plaintiff, or the proceeds of any of such drafts. checks or securities received by him. The plaintiff had no notice of the application for the order granted by the County Court or judge of Onondaga county, and was not apprised of the same until after Hubbell had paid the dividends to the preferred creditors of Wilkinson & Co. named in the assignment. After the trial of this action, the defendant, Alfred Wilkinson, died, leaving the defendant, J. Forman Wilkinson, sole surviving partner of the firm of Wilkinson & Co. Before the commencement of this action due and proper demand of payment on behalf of the plaintiff was made of the firm of Wilkinson & Co., and of said Charles E. Hubbell, as such assignee, and payment by them severally refused. The assignment was subsequently set aside as a fraud upon Wilkinson's creditors. The trial judge held that the defendant, Hubbell, was not liable for the moneys received and spent by Wilkinson & Co. prior to the assignment, nor for the money received by Hubbell himself after the assignment, and paid out by him in the payment of a dividend to the preferred creditors under the assignment, and that Wilkinson & Co. were themselves liable for the amounts collected by them as proceeds of the paper sent them for collection by the plaintiff. From an affirmance of a judgment entered to this effect by the General Term in the Fourth Department, the defendant has appealed here. Wm. James, for appellant. PECKHAM, J. The defendant Hubbell, as one defense to the claim of the plaintiff, insists that Wilkin son & Co., upon the receipt by them of the various checks and drafts or other pieces of paper payable on demand, and upon the crediting of the amounts thereof to the plaintiff upon their books, without waiting for the payment of the same, became the owners thereof, and that these facts amounted to a transfer of the title to the paper or its proceeds to Wilkinson & Co. In that we think he is mistaken. The indorsement upon each piece of paper was for collection simply, and by virtue of that indorsement no title passed to the firm but on the contrary, it became simply the agent of the plaintiff to present the paper, demand payment thereof, and remit to it. Under such circumstances the title to the paper remained in the party sending it. Bank v. Bank, 7 N. Y. 459: Dickerson v. Wason, 47 id. 439; White v. Bank, 102 U. S. 658. The letter accompanying the inclosures of paper amounted simply to a direction to credit after the collection was made, and up to the time that the funds were actually received by the firm it certainly would make no alteration in the law relative to indorsement for collection only. Nor does the finding of the learned justice at Special Term as to the custom pursued between the parties alter the law in regard to the title to the paper before the funds arising from the payment thereof were actually received by the firm. The finding shows that the credit was a provisional one only. It was a mere matter of book-keeping. It would seem to have been more in the form of a memorandum of the different pieces of paper received; because if any were not paid, such as went to protest were at once charged back upon the books of the firm against the plaintiff, and returned to it, with the expenses of protest charged to it. The firm never became absolutely responsible to the plaintiff for the amount of these collections until the collections were actually made, and the proceeds received by them. The property in these different pieces of paper therefore never vested in the firm, and the firm never purchased them, or advanced any money upon them. Hence the firm never owned them. Scott v. Bank, 23 N. Y. 289; Dickerson v. Wason, supra. These pieces of paper were undoubtedly subject to the direction of the plaintiff at any time prior to their payment, and it would have been the duty of the firm to have obeyed such direction. The plaintiff could have withdrawn the paper, or made such other disposition of it as seemed to it proper. It might have been liable to pay the firm for the services performed by them, but that had no effect or bearing upon the title to the paper. The cases relied on by the counsel for the defendant for the purpose of showing title in the firm were decided upon an essentially different state of facts. In Clark v. Bank, 2 N. Y. 380, the indorsement was in blank, which the court said prima facie imported a transfer of the title to the note, and that it was not sent for collection merely. Upon looking at the other facts in the case, the court held there was nothing to show that the paper was sent for collection only, but on the contrary, it appeared plainly that it was intended to pass the title. Gardiner, J., in that case said: "The whole fund was, by the course of dealing, and in this instance by the directions of the plaintiffs, treated as cash. It was passed to their credit according to their instructions, and the draft in question was for account." Again he said: "The whole arrangement was one of mutual convenience; and to hold that such drafts were transmitted for collection merely, with no right to a credit, or to draw against them until they were actually paid, is to lose sight of the situation of these brokers, their business and their necessities." In Bank v. Lloyd, 90 N. Y. 530, the bank received the check from the depositor as a deposit of money, and entered the amount as cash to the credit of the depositor in his bank pass-book, which was returned to him. There it was held that the title to the do with as he pleased. He had held other checks. Some of these he placed in the Troy Bank for collection. Others he deposited and took credit therefore as cash upon his pass-book. As to the first, he could give and revoke his own directions as often as he chose; but as to the others, when they were by his direction credited to him, the title passed to the bank, and they were not again subject to his control." There again the credit was of so much cash. It was nothing less than the purchase of the check. The indorsement was in blank, and the bank took it as owner. In Briggs v. Bank, 89 N. Y. 182, the defendaut made the First National Bank of Newark its collecting agent. The bank upon which the check was drawn upon its receipt charged the check to the drawer, and credited the defendant with the amount in its account. By the transaction the check was paid to the Newark bank, and it was only necessary for it to remit its collections once a week to the bank in New York, under its agreement. The next day however it suspended payment, and in an action by the person who gave the check to the defendant for collection, it was held that the defendant was liable for the payment thereof, although it had not received the amount from its own agent in Newark. The case is not in the least similar to the one at bar. In People v. Bank, 93 N. Y. 582, that bank and Utica City National Bank each acted as agent for, and kept a running account with, the other; the balance being struck once a week, and the bank found indebted remitting the balance due. The crediting of the paper was entirely different, and there was a mutual account current between the banks. All that case holds however is that when the moneys were paid the relation be tween the banks was simply that of debtor and creditor. We cannot see therefore that as to the paper not actually collected, and the cash received by Wilkinson & Co. before their failure, it ever became the property of that firm, or that the title to the proceeds thereof ever vested in that firm or its assignee. As to the moneys received by the firm in payment of checks and drafts sent to it for collection by the plaintiff, and by the firm paid out before the assignment, and in the usual course of business, in payment of the debts of the firm, and of course never received by the assignee, we do not see that the plaintiff occupies any different position in that regard toward the firm than any other creditor. As the firm was to remit but once a week, of course it was not expected that the identical moneys received by it in payment of paper sent to it for collection were to be sent to the plaintiff. The firm, by the arrangement, had the right to retain the moneys, and to remit weekly; and of course from one week to another it had the right to use the money, and the plaintiff relied upon the credit of the firm for such time as it had the right to retain the money. But it is claimed on the part of the defendant assignee that assuming that no title to the checks passed to Wilkinson & Co., the plaintiff is not entitled to recover so far as regards the proceeds of the paper that were received by the assignee, and expended by him in good faith, and without notice by him of any claim on the part of the plaintiff prior to the making of the demand, or the service of the notice by the plaintiff upon him. We think this claim cannot be maintained. In the first place, the moneys received by the assignee, as proceeds of the paper sent by the plaintiff to the firm for collection, and not collected by the firm before the assignment, never became the property of that firm, and therefore the legal title never passed to the assignee of the firm. It was not transferred by the firm to the assignee, because at the time when the makes the assignment, and that title passing to the assignment was made the money had not been col-assignee, who is innocent of the fraud, a demand by lected, and had not come into the hands of the assignors. It never came into the hands of the assignee by virtue of the assignment, in any legal sense of the term. The moneys came to him from the various collecting agents to whom the drafts and checks had been sent by the firm The assignee could get no better title to the moneys than his assiguor, and neither had any right to apply such moneys collected after the failure to the payment of firm debts. If it be said that he received and applied them in good faith, it may be answered that good faith did not change the title of the plaintiff to the proceeds of its property. There are cases in which an assiguee or trustee is protected for acts done in good faith under an instrument creating the trust, and before such instrument had been declared invalid. Where an assignee, under an assignment for the benefit of creditors, fraudulent upon its face, pays money to bona fide creditors of the assignor in accordance with the directions of the assignment, he will be protected, provided he does it in good faith, and before any other creditor has obtained a lien upon the money. This is because the assignment, as between the parties to it, is valid, and the assignee, in making such payment, is doing no more than the assignor might at that time lawfully have done if no assignment had been made. In such case all that can be said is, if the assignment be declared void, that the assignor paid certain of his creditors in- | directly, and through the agency of the assignee, at a time when he had the right to do it directly, but for the assignment. Such was the case of Ames v. Blunt, 5 Paige, 13, where the chancellor said that the liability of the assignee depended upon the question whether the rights of the plaintiff had been affected by the distribution of the proceeds of the assigned property to bona fide creditors of the assignor; and it was held that the plaintiff was not thereby injured, because the assignee had done no more than the assignor might have done at any time before the plaintiff obtained a lien upon the money paid by the assignee. To the same effect are the cases of Collumb v. Read, 24 N. Y. 505; Averill v. Loucks, 6 Barb. 470, 477; Iddings v. Bruen, 4 Sandf. Ch. 452, 456. The case of Sullivan v. Miller, 106 N. Y. 635, is also an instance of the same general principle. In that case the property belonged to the assignor, and was assigned to the assignee subject to a mortgage. The action of the assignee, or his successor, the receiver, was upheld by the court. The title to the property was in the assignor. It was not property of a third person which he disposed of. It is argued also that as this property came honestly into the possession of the assignee, the plaintiff would have to prove a demand upon, and a refusal by, him to give it up before an action could be maintained; and it is then claimed that where such an assignee, before notice has been given to him, or any demand made upon him for a surrender of the property, has disposed of the same in good faith, he is relieved from liability. The cases cited by counsel are those where property has come into the hands of the assignor tortiously, and under such circumstances, that as between him and the original owner, the latter could insist upon his title. In such case, where possession of the property is given to the assignee under the assignment, it is held thrt he, having innocently come into possession of the same, before an action can be maintained against him demand must be made for the surrender of the property. Such is the case of property obtained by the assignor by fraudulent representations, where the vendor has the right to rescind the contract and take back the property. Barnard v. Campbell, 58 N. Y. 73; Goodwin v. Wertheimer, 99 id. 149. But in such case the legal title is in the assignor at the time he the vendor must be made before an action for its re- Lastly, the claim is made that the plaintiff has been guilty of laches in asserting its rights, and that therefore the payment made by the assignee in ignorance of the existence of its claim is to be protected. If laches were a defeuse, we see no facts upon which their existence can be founded. The plaintiff heard of the assignment of Wilkinson & Co., at the earliest, not before December 10, 1884, and on the 26th the demand on its behalf for these moneys was made of the assignee. It seems that under an ex parte order of the County Court or judge, made on the 23d of December, he had already paid out a large part of this money. It would be a pretty stern application of the doctrine of laches to hold that a plaintiff should be deprived of all title to its property by reason of not making a demand for it, of an assignee of a third person for the benefit of creditors, within less than sixteen days after it heard of the assignment, and where it had no reason to suppose that the assignee would take its property to pay the debts of the assignors. The defense of laches is not made out. Whether the funds, if there are any, in the bands of the assignee, collected by him since the service of the notice and the demand, should be impressed with a trust to reimburse the plaintiff the amount of its property, used to pay the debts of the assignors, we do not now decide. We should want more facts before us. We should, among other things, want to know whether any liens had been acquired by any other creditor upon such moneys, and under what circumstances, so as to be able to decide understandingly as between different claimants to such funds. Perhaps other parties would have to be brought in. Upon the whole, we think the assignee is liable to account to the plaintiff for the moneys received by him subsequent to the 9th day of December, 1884; being the proceeds of the checks or drafts above referred to. It results from these views that the judgment of the General and Special Terms should be reversed as to the assignee, and a new trial granted against him, with costs to abide the event. ubi supra. In agreement with these views, and also with the fact that the qualifications of sections 1 and 2, the limit of compensation set by section 3, the require ment of notice and limitation of time for suing in section 4, and the directions as to the court where the action shall be brought in section 6, are all confined to All concur, except RUGER, C. J., and ANDREWS, J., proceedings "under this act," the text-books argued not voting. MASTER AND SERVANT - NEGLIGENCE STATUTE. MASSACHUSETTS SUPREME JUDICIAL COURT, NOV. 26, 1889. RYALLS V. MECHANICS' MILLS. Acts of Massachusetts of 1887, chapter 270, section 1, which provides a remedy for employees injured through the negligence of their employer does not take away the common-law remedy of the employee, but he still has a right to sue under the same conditions, and recover damages to the same extent as if the statute had not been passed; and section 3 of said chapter, which requires an employee to give notice to his employer of the time, place and cause of the injury before he can sue under the act, applies to those cases only which lie outside the commonlaw rule, and within the statute, or to a case in which an employee, though he has a remedy at common law, re. lies on the statute alone. REPO )EPORT from Superior Court, Bristol county. Robert R. Bishop, judge. J. W. Cummings, for plaintiff. HOLMES, J. This is an action for personal injuries caused to an employee by a defect in the condition of the machinery used in the business of her employer. The declaration is framed without reference to the Employers' Liability Act (Stat. 1887, chap. 270) and the plaintiff has had a verdict. We must take it therefore that the defect was of such a kind that the defendant would have been liable under our decisions, unless the above statute has cut down the plaintiff's common-law rights. The question raised by the report is whether, since that statute, an employee's right of action in cases like this is wholly statutory, and whether the plaintiff is barred because she did not give the notice of the time, place and cause of the injury, without which, by section 3, no action for the recovery of compensation for injury under that act shall be maintained. It will be seen by reading the two statutes that ours is copied verbatim, with some variations of detail, from the English statutes (43 and 44 Vict., chap. 42). Therefore it is proper, if not nesessary, to begin by considering how the English act had been construed before our statute was enacted. Com. v. Hartnett, 3 Gray, 450; Pratt v. Telephone Co., 141 Mass. 225, 227. Looking first at its general scope, it was plain that it did not attempt to codify the whole law as to the liability of employers. Rob. & W. Emp. Liab. (3d ed., 1885) 208. It was regarded as an act passed in favor of workmen. Gibbs v. Railway Co., 12 Q. B. Div. 203, 211. See Walsh v. Whiteley, 21 id. 371, 380. It was held to be intended only to remove certain bars to their right to sue for personal injuries based on their relation to their employer. Griffiths v. Dudley, 9 Q. B. Div. 357; Weblin v. Ballard, 17 id. 122, 125; Thomas v. Quartermaine, 18 id. 685, 692; McAvoy v. Paraffin Co., 9 Ct. Sess. Cas. (4th ser.) 100, 103; Morrison v. Baird, 10 id. 271, 277; Robertson v. Russell, 12 id. 634, 638. But these bars were removed only in the cases specified in the act. Griffiths v. Dudley, 9 Q. B. Div. 357, 362; Gibbs v. Railway Co., 12 id. 208; Rob. & W. Emp. Liab. 241, 242. And defenses not based upon the relation of master and servant were left unaffected, although not mentioned. Weblin v. Ballard, Thomas v. Quartermaine, and affirmed that the workman's common-law rights remained unimpaired. Rob. & W. Emp. Liab. (3d ed.) 207, 209, 331; Fras. Mast. & Serv. (3d ed.) 172; Spens. & Y. Employer & Employed, 130, 131; Macd. Mast. & Serv. 659, 660. The practice of proceeding under the statute and at common law in the same action seems to have been settled in Scotland. McDonagh v. MacLellan, 13 Ct. Sess. Cas. (4th ser.) 1000, 1003; Morrison v. Baird, ubi supra; Rob. & W. Emp. Liab. 209. And the intelligible doubts which may have been felt as to the reasoning in Morrison v. Baird, touching the right to remove the whole action to the Court of Sessions under section 6 (Spens & Y., supra, 173), did not affect the continued existence of common-law rights. * * * * * We shall add one or two references more specifically applying to this case after we have stated the substance of section 1. By section 1 of the English act, when "personal injury is caused to a workman (1) by reason of any defect in the condition of the machinery used in the business of the *the workmau * employer, * * shall have the same right of compensation and remedies against the employer as if the workman had not been a workmau of, nor in the service of, the employer, nor engaged in his work." This right, it will be seen, is given by this section without qualification. But then section 2 goes on to say that he shall not be entitled, "under this act, to any right of compensation or remedy against the employer" under subsection 1 of section 1, "unless the defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and intrusted by him with the duty of seeing that * * machinery * * * [was] in proper condition." Standing in this form, it was tolerably clear that subsection 1 of section 1 was not intended, in connection with section 2, to codify as well as to enlarge a rule of the common law, and to make all actions by workmen for defects in machinery statutory; but that, like the other subsections of section 1, it purported at most only to do away with the defenses that the workman impliedly took upon himself the ordinary, manifest risks of his employment (Weblin v. Ballard, Thomas v. Quartermaine, ubi supra; Yarmouth v. France, 19 Q. B. Div. 647, 654, see p. 667), or that the defect was due to the negligence of the person intrusted by the master with the supervision of the machinery, and that he was the plaintiff's fellow-servant, the ground on which the defendant escaped in Wilson v. Merry, L. R., 1 H. L. Sc. 326; Griffiths v. Dudley and Morrison v. Baird, ubi supra. The purport of section 1 was made clearer by the words "under this act," just quoted from section 2, and the intent of section 2 obviously was to cut down and limit the unqualified provisions of section 1 to cases where there had been negligence on the part either of the employer or of the person intrusted by him. See Stuart v. Evans, 49 Law T. (N. S.) 138; 31 Week. Rep. 706; Thomas v. Quartermaine, 18 Q. B. Div. 685, 693. It seems to follow that, as suggested by Rob. & W. Emp. Liab. 208, the requirement of notice in section 4, in order to maintain an action "under this act," does not mean that a workman is "to lose all right of action because he gives no notice of injury, even when the employer himself is the culpable person, and the workman is at death's door during the whole of the six weeks." In Thomas v. Quartermaine, 18 Q. B. Div. 702, Fry, L. J., cites with approval, although to a different end, another passage from page 252 of the same work, a part of which is as follows: Suppose that, altogether, through the carelessness of the employer, or of the persons intrusted with the duty of looking after the ways, etc., a foot-bridge becomes and is allowed to remain in a defective and dangerous condition, so that a workman who is injured while using the bridge in the course of his duty, and ignorant of its condition, would clearly have a right to sue the employer, in the first case at common law under the act, and in the second under the act. in the English act, is stated explicitly in ours. Thus it falls out that the part of section 1 to which we are referring, seems at first sight to add nothing to the common law as previously declared, and by its form has very much the air of a legislative statement of the principles of the cases. But we should assume that subsection 1 of section 1 was nugatory, sooner than admit that it cut down the common-law rights of employees under the deceptive form of enlarging them. We certainly do not believe that, by combining subsection 1 of section 2 of the English act with subsection 1 of section 1, it meant to give any new meaning or scope to the two clauses, the words of which are so carefully followed. The intention was merely to abridge the model and make it more compact. As in the original, the reference to negligence is solely for the purpose of qualifying the operation of the other part of the sentence, not for the purpose of codification. The purport of the whole is still only to abolish, perhaps, the defense of implied assumption of risk, and certainly that of negligence of a fellow-servant (Ashley v. Hart, 147 Mass. 573), as it was in the English statute and as is manifestly the case in the second and third clauses of the same section. Were this not so, the cumbrous conclusion, which applies to all the clauses alike, "shall have the same right," etc., as if he had not been an employee nor in the service of the employer," etc., hardly would have been adopted from the English act. If there are no cases for which the first clause is needed, all that is to be said is that to that extent the Legislature too hastily assumed that the law of Massachusetts was the same as that of England. We shall not undertake to decide until it is necessary whether subsection 1 of section 1 has not an operation in excluding the defense of implied assumption of risk, when the defect, although manifest, is still properly attributable to the negligence of the master or of the person intrusted by him, which is one of the cases held to be [covered by the English act. Yarmouth v. France, ubi supra; Thrussell v. Handyside, 20 Q. B. Div. 359; Fraser v. Hood, 15 Ct. Sess. (4th ser.) 178. Neither shall we consider whether the act would apply to cases where, by our decisions, neg Whether correct or not, this was the state of comment upon and construction of the English statute when the Massachusetts act was passed, copying its words very closely. We cannot deal with the latter quite on the same footing as if the Legislature had framed it in their own language, used for the first time. We must assume that they were content with the expounded meaning of the words which they adopted. But it would not need the aid of previous exposition to show that the main purpose of the statute is to extend the liability of employers in favor of employees; that it does not attempt to codify the whole law upon the subject; and that it leaves open some common-law defenses and some common-law liabilities. It view of these general considerations we are to construe the statute liberally in favor of employees, and we ought to be slow to conclude that indirectly, and without express words to that effect, it has limited the workman's common-law rights most materially in respect to the conditions and times of bringing an action and the amount which he can recover; for all these provisions stand upon the same footing with regard to the present case. General maxims are oftener an excuse for the want of accurate analysis than a help in 'determining the extent of a duty or the construction of a statute. But certainly, with such a statue as this, we agree that common-law rights are not to be taken away by doubtful implications and affirmative words. Wilbur v. Crane, 13 Pick. 284, 290; Barden v. Crocker, 10 id. 383, 389; 2 Co. Inst. 200; Com. Dig. tit. "Action upon Statute," C; Chapman v. Pickersgill, 2 Wils. 145, 146; Wilson v. Railway Co., 2 De Gex, J. & S. 475, 496. However instead of following the order of the Eng-ligence in making small repairs needed from day to lish act, the Legislature sought to abridge and simplify matters by carrying over the qualifying clause, which we have quoted from the English section 2 into section 1 of our act, so that it runs: When personal injury is caused to an employee, who is himself in the exercise of due care, etc., by reason of any defect in the condition of the machinery, etc., "which arose from, or had not been discovered or remedied owing to the negligence of the employer or any person in the service of the employer and intrusted," etc., the employee shall have the same right, compensation and remedies against the employer as if he had not been an employee, etc. If we are right in the view which we take of the intention of the Legislature, we should have had less difficulty in discovering it, and in carrying it out, if the language of the English statute had been followed less exactly, and if the transposition just mentioned had not been made. In 1887 it was settled law in Massachusetts that masters were personally bound to see that reasonable care was used to provide reasonably safe and proper machinery, so that if the duty was intrusted to another, and was not performed, the fact that the proximate cause of the damage was the negligence of a fellow-servant was no defense. Gilman v. Railroad Co., 13 Allen, 433, 440; Lawless v. Railroad Co., 136 Mass. 1. The rule in Wilson v. Merry, ubi supra, practically, if not in terms, had been modified very much in favor of servants. Rogers v. Manufacturing Co., 144 Mass. 198, 202. Furthermore the requirement that the employee shall himself be in the exercise of due care, which was left to implication day may still be attributed to a fellow-servant. Johnson v. Tow-Boat Co., 135 Mass. 209; McGee v. Cordage Co., 139 id. 445; Moynihan v. Hills Co., 146 id. 586. If the act does apply to such cases, there is the stronger reason for saying that its only purpose is to extend the common-law liability to the previously excluded cases; and if the object is to make a rule which will reach extremes not touched by the common law, the fact that this is done by a new and broader rule, the terms of which are necessarily wide enough to include the narrower common-law principle, does not show an intention to prejudice rights which the statute was not needed to create. Whether or not an action could be maintained under the statute in a case where there is a common-law remedy, as assumed in a passage which we have quoted concerning the English act, we need not decide. If the facts warrant a recovery at com. mou law, it is not likely that any plaintiff will wish to rely upon the statute, although when it is uncertain how the facts will turn out it may be necessary and proper to join a count on the statute with one on the common-law liability. For the foregoing reasons we are of opinion that in those cases within the words of the statute of 1887, chapter 270, section 1, subsection 1, in which the common law gives an employee a remedy, he still has a right to sue under the same conditions, and to recover damages to the same extent, as if the statute had not been passed. We are also of the opinion that, so far as subsection 1 of section 1 is concerned, the requirements of notice in section 3, as a condition to main |