Page:Harvard Law Review Volume 5.djvu/54

38 38 HARVARD LAW REVIEW. real question is held to be one of fact, whether or not the master had a right to believe that the servant intended to waive his objection to the defect in the materials provided for his work, and to accept an implied contract exempting the master from liability. (Sher. & Red., Neglig., sec. 215; Cooley. Torts, 2d ed. 559.) It was well pointed out, however, by defendant's counsel in Lewis v. N. Y. &* N. E. R. R. Co., that the clear reason for the rule that the master owes the servant the inalienable duty of supplying suitable machinery is, that the servant may fairly expect that these matters of which he can know nothing, and of which the master, if he choose, can know everything, will be properly looked to by the master. It seems to follow reasonably that, whenever the servant's knowledge, or opportunity for obtaining knowledge, as to the dangers which will be incurred if he remains in service, is equal to his master's, the master owes him no duty to guard him against such dangers. The supposi- tion is not that the employee, believing the employer has righted matters, goes on with his work without noticing the continuance of the defect. The servant knows as well as his master that the defect cannot be cured at once, and must appreciate the risk he will incur if he remains. To continue in the service is still a voluntary act, even if to leave it be a matter of hardship for the employee ; and the principle of volenti non fit injuria may well apply. THE LAW SCHOOL. LECTURE NOTES. [These notes were taken by students from lectures delivered as part of the regular course of instruction in the School. They represent, therefore, no carefully formulated statements of doctrine, but only such informal expressions of opinion as are usually put forward in the class-room. For the form of these notes the lecturers are not responsible.] The Statute of Limitations in Case of Fraud or Mistake, at Law and in Equity. — From Professor Ames's Lectures. — Fraud. — There is much diversity of opinion as to the rights of a plaintiff who has been defrauded of his money, and who has not dis- covered the fraud until after the period of limitation has elapsed. In- asmuch as the cause of action accrues in such cases when the fraud is consummated, and since the language of the Statute of Limitations is absolute, that no action on the case shall be brought unless within six years of the time when the cause of action accrued, it would seem to be a clear evasion of the statute to allow a recovery at law after the six years. Accordingly, in many jurisdictions recovery is not allowed in such cases. 1 But in other jurisdictions the courts, influenced by the great hardship upon the plaintiff, have not scrupled to read into the statute an exception in favor of plaintiffs ignorant of the fraud. 2 There is, however, a mode by which a plaintiff may secure full jus- 1 Gibbs v. Guild, 9 Q. B. Div. 59 (semble); Barber v. Houston, L. R. 18 Irish, 475 ; Campbell v. Vining, 23 111. 525; Ellis v. Kelso, 18 B. Mon. 296; Wilson v. Ivy, 32 Miss. 233; Troup v. Smith, 20 Johns. 33 ; Foot v. Farrington, 41 N. Y. 164 ; Miller v. Wood, 116 N. Y. 351 ; Smith v. Bishop, 9 Vt. no. Jones v. Conoway, 4 Yeates, 109. It will be remembered that in Massachusetts, New Hampshire, and Pennsylvania there was formerly no chancery jurisdiction.
 * Bailey v. Glover, 21 Wall. 342 ; Homer v. Fish, 1 Pick. 435 ; Bowman v. Sanborn, 18 N. H. 205;