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others; but, subject to these qualifications, it does include all communication by copying, &c., of the contents of the letter.

At the same time, it is rather a curious fact, having regard to the number of letters, private and otherwise, which nowadays are written every day, that the precise rights of the various parties interested are not defined more accurately than they are, for, besides the element of uncertainty which exists as to the actual meaning of the word "publication," it is submitted that there is, at any rate, some doubt as to the exact powers which the writer has to prevent this publication. The statute law, from the earliest Copyright Act to the recent Act of 1911, never has been of any assistance in determining the question, and we are accordingly thrown back upon the various cases upon the subject-and they show chiefly the number of different views which have been entertained at various times upon the subject.

It is perhaps most correct to say that the actual copyright in the letters, such as it is, vests, subject to the powers of the sender over it, in the recipient, for after the death of the sender the rights of the recipient to publish the letter become absolute, and, contrary to the former law upon the subject, the personal representatives of the sender have nothing to say in the matter. The well-known case of Macmillan v. Dent (95 L. T. Rep. 730; (1907) 1 Ch.107) is a case in point. It arose out of certain letters written by the late Charles Lamb; and the representatives of the recipient had sold the right of publishing these letters to certain persons, who had afterwards permitted Messrs. Macmillan and Co. to do so, and the law upheld the title of Messrs. Macmillan and Co. Moreover, the recipient has always had the right to prevent third parties from publishing the letters.

Whether this is so or not, however, the rights of the recipient are certainly subject to the powers of the writer during his lifetime. In the old case of Thompson v. Stanhope (Amb. 737), in fact, Lord Apsley laid it down that the rights of the recipient to the letters were subject to the veto over the publication thereof of the personal representatives of the writer, and he held in that case that the plaintiff could be prevented from publishing them by the executors of Lord Chelmsford, who had written them. However, that is not so now, and the case of Gee v. Pritchard (2 Sw. 402) is a good deal more accurate description of his powers.

Lord Eldon, who gave judgment in this case, was personally of opinion that the writer of a letter had no property in it at all, and, in fact, in his judgment he said that, had the matter come before him unincumbered by authority, he would have so decided, but, as it was, he held that the writer had certain qualified powers to prevent any publication of her letters, saying that she could do so unless by some act she had deprived herself of this privilege. The case of Hopkinson v. Burghley (L. Rep. 2 Ch. 447) carries this qualification one step further, for here a writer of letters endeavoured to prevent their production in court, but the court, in accordance, it must be said, with certain language to that effect in the last-mentioned case, decided against him.

The best description of the powers of the writer is, however, contained in the case of Labouchere v. Hess (77 L. T. Rep. 559), where most of the above authorities are reviewed. The decision in this case rests upon the grounds that the writer, during his lifetime, has a certain species of property in the publication of his letters, but that this property only stands as far as to prevent the recipient from making any unfair or improper use of them. This would certainly seem to be the reasonable view.

Subject to these powers of the writer, however, the rights of the recipient are absolute. He can sell the letters, apparently at any time, and he can also sell whatever rights he has to publish them. The case of Macmillan v. Dent above mentioned, moreover, is an authority for stating that he can sell the letters apart from the right of publishing them, for in that case the defendant had purchased the actual letters themselves, yet it was held, owing to the prior sale of the rights of publishing, that no such rights passed to him,

The rights of a third party to a letter in the ordinary case are obviously none, unless as a purchaser. With that exception, he only comes upon the scene if he is libelled by the contents of the letter, and in that case he has merely his ordinary civil and criminal remedies for the wrong done him, and Third Sheet.

he can compel the owner of the letter, by means of a subpoena to produce it in court. In the ordinary case, of course. the proper person against whom to take proceedings would be the writer of the letter, but, if the letter containing the libel had been republished by the recipient, he would also have his remedy against this latter person. Moreover, in cases where the defence of privilege would apply, it is conceived that his remedy might be against the recipient even where he had none against the sender, and although the case of Speight v. Gosnez (60 L. J. 231, Q. B.), which held that the author of a slander is never technically liable for its repetition unless he meant it to be repeated, or unless he knew it would be repeated, or he had reasonable grounds for supposing it would be repeated, does not in terms apply to a libel, yet it is conceived that there may be other cases in which the recipient and not the author of the letter would be the person liable.

If by any chance, on the other hand, the contents of the letter should libel the person to whom it is sent, he has no civil remedy, as there has been no publication to a third party, but he can take criminal proceedings against the writer of the letter if the obvious tendency of the words used is to provoke him to break the peace. For this see Hicks' case (Hob. 215; Poph. 139, cited 6 East, 476) and the other cases collected on p. 467 of Odgers on Libel and Slander.

For some reason or other, the merely marking of the letter "private and confidential ' seems to have very little effect at all. It does not enable the writer to prevent its publication after his death; it does not enable the recipient to prevent its production in court, and, according to the case of Picton v. Jackman (4 C. & P. 257), it does not create any new form of privilege as a defence to a libel action.

It need scarcely be said, however, that all the foregoing remarks as to publication, &c., of the letters do not apply to a letter which is written to an editor of a newspaper or other periodical either expressly or impliedly for publication. In this case the recipient has always an absolute right to publish the letter, although, of course, there is no duty cast upon him of doing so.

COMMENTS ON CASES.

Accident Resulting from Workman's Disobedience. BUT for judicial intervention, the provisions of sect. 1, subsect. 2 (c), of the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58) would bear far more harshly and unfairly on employers of labour than in fact they do. Attention, therefore, cannot too frequently be called to instances where a corrective restraint has been enjoined by the courts. And the latest of them is furnished by the decision of the Court of Appeal in the recent case of Parker v. Hambrook (noted ante, p. 280). The effect of the sub-section is that a workman, who has met with an accident and has thereby sustained an injury which is attributable to his "serious and wilful misconduct," becomes disentitled to compensation— "unless the injury results in death or serious and permanent disablement." It is seen, therefore, that, according to the Act, the graver the consequences of a workman's "misconduct " the more does the severity of the burden imposed on the employer manifest itself. But even where "death or serious and permanent disablement" results from the injury, mitigation is conceded by the courts. The workman, or his dependants in the event of his death, cannot claim compensation if the risk that he took-conducing to his "serious and wilful misconduct," in short -was not necessary or reasonably incidental to the employment in which he was engaged. This important principle was enunciated with the utmost distinctness by the Court of Appeal in the two cases of Harding V. Brynddu Colliery Company Limited (105 L. T. Rep. 55; (1911) 2 K. B. 747) and Rose v. Morrison and Mason Limited (105 L. T. Rep. 2). What, however, is of much greater concern is that the principle met with the unequivocal approval of the House of Lords in Barnes v. Nunnery Colliery Company (105 L. T. Rep. 961). A further case, in which the same principle was discussed, was Watkins v. Guest, Keen, and Nettlefolds Limited (106 L. T. Rep. 818). In the first place, want of prudence and caution, or even infringement of

rules, may be immaterial, in the view taken by the House of Lords in Barnes' case (ubi sup.). The workman in Parker v. Hambrook (ubi sup.) was undoubtedly imprudent. Also he did what was equivalent to disobeying a rule, even though it was no more than a safety order that he disregarded. But unquestionably he did imprudently or disobediently something different from that which he was required or expected to do in the course of his employment, and, moreover, was prohibited from doing. Thus, he came within the plain ruling in Barnes' case (ubi sup.). Because he could obtain flints, for which he was employed to dig, more rapidly and easily in a deep trench than in other parts of the hollow or quarry where he was working, he went there despite an express order to the contrary on account of the danger that existed of the soil falling in. His rate of remuneration depending on the quantity of flints that he secured, it was to his personal advantage to work in that dangerous trench-known by him to be so-notwithstanding the strict prohibition against his going there. The principle laid down by the Court of Appeal in Harding's case (ubi sup.) was not acted upon there, inasmuch as in the opinion of the majority of the court it did not come into operation. But in the present case the workman was doing something outside the scope of his employment, and for his own benefit. The trench, a prohibited place, was not within the area in which he was engaged to work. Although, therefore, death resulted from the injury, the application of the statutory provision was negatived.

Co-respondent Covenanting with Injured Husband.

FORGIVENESS of an erring wife, conditional upon all intercourse of every description with her paramour being absolutely terminated, is not by any means of uncommon occurrence. And no more effectual method could be devised for securing that such intercourse shall cease, and the wife be safeguarded, than that which was so trenchantly adopted in the recent case of Upton v. Henderson (106 L. T. Rep. 839). Of much interest is it, therefore, to examine the reasons for Mr. Justice Eve's decision in that case, dealing with the several objections, on the ground of public policy, to the validity of the deed of covenant which was there entered into. It will be observed from the statement of facts appearing in our report that the consideration for the deed was £3000. That sum was held by trustees, and the income thereof was payable to the defendant, with whom the plaintiff's wife was alleged to have misconducted herself, unless and until breach of his covenant therein contained should be committed. In case of breach, the money was to become forfeited to the plaintiff or to his wife if he should be dead. The defendant's covenant was that he would not, during the period of fifteen years, come within a radius of ten miles of the mansion-house where the plaintiff and his wife resided, on any pretext whatsoever, except with the written consent of the plaintiff or of his wife if he should be dead. The defendant was guilty of breaches of the covenant. Thereupon the plaintiff claimed the deposited fund. As to the first objection, there seems to have been a curious confusion between an agreement by a co-respondent to pay a sum of money to a husband in consideration of his withdrawing from a suit for the dissolution of his marriage-as in the case of Gipps v. Hume (2 J. & H. 517)—and an agreement to pay damages for something that might happen in the future. The former, involving payment of damages for a past wrong, is doubtless, as was held by Vice-Chancellor Page-Wood, a fraud upon the divorce laws and void as against public policy (see, also, Brown v. Brine, 33 L. T. Rep. 703; 1 Ex. Div. 5). But the contention that what was done in the present case was merely a circuitous way of bringing about a result similar to that which was condemned in Gipps v. Hume (ubi sup.) appears quite rightly to have been treated by Mr. Justice Eve as entirely without foundation. The second objection, also, seems so far-fetched as really not to have merited the serious consideration that the learned judge thought proper to bestow upon it. The attempted application of the doctrine concerning covenants in restraint of trade gave no substance to that objection. The final objection, however, was perhaps more worthy of his Lordship's attention. The covenant it was urged, was illegal in its effect because it would place an unlawful restriction upon the liberty of the defendant in going

or

about the realm. He would thereby be debarred from exercising his freedom of action, and moving about where he pleased-an undue and improper interference with the liberty of the subject. His Lordship put it most pertinently when he caustically remarked that this particular subject had allowed his liberty to degenerate into licence; and that it was to the restraint on that kind of liberty that this covenant was directed. Setting aside, however, all such well-deserved strictures, there is no direct authority, apparently, for the contention that a person cannot voluntarily restrain himself from going to some district inside outside the kingdom. The passage to the supposed contrary that was relied upon by the defendant's counsel in Blackstone's Commentaries (21st edit., vol. 1, p. 134), deals, the opposing counsel insisted, with the case of persons being restrained from doing something by some one else. However that may be, Mr. Justice Eve did not see his way to holding that the covenant was, by reason of its curtailment of the defendant's "power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct," adverted to by Blackstone, void as being against public policy. With the only objections to the covenant thus disposed of, it is one that is fairly to be regarded as a useful precedent Forfeiture of a substantial deposited fund may be expected to act as a deterrent when other expedients fail completely.

THE CONVEYANCER.

day of

191 (hereinafter in the

MISCELLANEOUS PRECEDENTS (continued). Lease of Coal, Ironstone, and Fireclay in South Wales. THIS INDENTURE made the day of BETWEEN A. B. of in the county of called "the lessor ") of the first part C. B. of county of of the second part and E. F. and Co. Limited (hereinafter called "the lessees") of the third part WITNESSETH that in consideration of the rents royalties and wayleave rents hereinafter reserved and of the covenants on the lessees' part and conditions hereinafter contained the lessor in exercise of the powers for this purpose limited to him by an indenture of settlement dated the day of 18 and made between &c. as modified by an indenture of settlement dated the 190 and made between &c. and of the powers conferred on him by the Settled Land Acts 1882 to 1890 as extended by the last-mentioned indenture and of all other powers (if any) him hereunto enabling and with the consent in writing (hereby testified) of the said C. B. doth hereby appoint and demise unto the lessees FIRST ALL the mines veins or seams of coal ironstone and fireclay being at a greater depth than feet below the level of lying and being within and under the lands and hereditaments known respectively as part of (except containing yards or thereabouts coloured on the plans marked A and X hereinafter mentioned the mines and minerals under which are excepted from this demise) and in and under a small piece of land near all which said lands and hereditaments are situate in the parishes of in the county of and contain together by estimation thereabouts and are delineated and coloured upon the plan hereunto annexed and marked A (and as regards the part hereinbefore mentioned of is also delineated and edged

square

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upon the larger scale plan hereunto annexed and marked X) and which said lands and hereditaments (except as aforesaid) are sometimes hereinafter referred to as "the said lands and hereditaments but as to such parts of the said mines veins seams and minerals expressed to be hereby appointed and demised as lie under or near any highways public roads or ways railways tramroads sewers rivers streams or watercourses so far only as the lessor has power to demise the same all which said mines veins seams and minerals expressed to be hereby appointed and demised are sometimes hereinafter referred to as "the demised mines or' the said demised mines ") AND SECONDLY the surface of ALL that piece or parcel of land containing by estimation a. r. p. or thereabouts delineated and coloured

upon

lessor of the first part and the E. F. Company Limited of the other part and the rights and powers of the E. F. Company and their assigns thereunder and to the rights easements and powers of the Board under their Acts of Parliament of 190 and 190 or otherwise already or hereinafter to be granted or exercised and subject also to the restrictions and conditions as to the exercise and enjoyment of the liberties powers and privileges hereby granted specified in the same part of the said schedule or elsewhere in these presents EXCEPT AND RESERVED out of this demise or granted by the lessees unto the lessor the property liberties powers and privileges specified in the second part of the said schedule or elsewhere in these presents To HAVE AND TO HOLD the premises hereby appointed and demised unto the lessees from the day of 190 for the term of sixty years next ensuing YIELDING AND PAYING therefor the several rents royalties and wayleave rents specified in the third part of the said schedule or elsewhere in the said schedule SUBJECT to the provisions relating to the said rents royalties and wayleave rents expressed in the fourth part of the said schedule or elsewhere in the said schedule. AND the lessees do hereby for themselves and their assigns covenant with the lessor as in the fifth part of the said schedule is expressed. AND the said A. B. with the consent in writing (hereby testified) of the said C. B. doth hereby for himself and his assigns (in order to bind the reversion of the hereby demised pre premises expectant on the term hereby granted so far as he lawpefully can or may but not so as to render himself personally liable in damages except for his own personal acts and defaults) covenants with the lessees as in the sixth part of the said schedule is expressed. AND it is hereby agreed and declared as in the seventh part of the said schedule is expressed. AND it is hereby also agreed and declared that where the context allows the expression "the lessor" used in these presents and in the said schedule shall mean and include besides the said A. B. the person or persons from time to time entitled to the reversion of the premises hereby demised expectant on the term hereby granted and that where the context allows the expression "the lessees used in these presents and in the said schedule shall her mean and include besides E. F. and Co. Limited as well the assigns of E. F. and Co. Limited as the underlessees of and all other persons and corporations deriving title under E. F. and Co. Limited. IN WITNESS &c.

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THE SCHEDULE BEFORE REFERRED TO.
Part I.

and Liberties, Powers, and Privileges to be exercised by the Lessees in Connection with the above written Demise subject as in this Part of this Schedule mentioned.

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Liberty and Power for the Lessees, their Agents, Servants, and Workmen and others on behalf of the Lessees to do the Acts and Matters following during the Continuance of the Term hereby granted.

1. To win work and get the demised mines by underground workings only from the adjoining mines of the lessees and not by and entering upon the surface of the said lands and hereditaments and to carry away the produce thereof and to convey or permit to be conveyed through the demised mines and the workings therein minerals the produce of other mines.

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2. For the purposes aforesaid and every of them to drive make maintain and use underground pits headings levels tramroads railroads drains tunnels airways and gates and all other necessary and convenient underground works and ways in or through the demised mines or any part thereof.

3. For the like purposes or either of them to make instroke and outstroke drifts through the barriers hereinafter covenanted to be left in case barriers shall be required by the lessor and to make repair and use tram rail or other roads or communications watercourses or other conveniences in or through such drifts but so that all such drifts shall be of such size and in such situations as shall have been previously approved of in writing by the lessor or his agent and all such drifts shall be so made as to be capable of being easily and effectually closed by frame dams when the use thereof has ceased.

4. Together with liberty and powers in exercising the liberties and powers aforesaid to let down the surface of the said lands and hereditaments and the strata lying above the said demised mines in a due and proper course of working the demised mines and with every care on the part of the lessees to prevent unnecessary damage to such surface and superincumbent strata subject to the rights privileges and powers of the following local authorities corporations railway and other companies and persons that is to say (1) the Urban District Council the County Council and the Rural District Council whether in respect of roads sewers rivers streams springs or water or other works upon in through or under the said lands and hereditaments or any part thereof or adjoining or near thereto or otherwise (2) the

Board whether in respect of sewers rivers streams springs water or other works mines or minerals upon in through or under the said lands and hereditaments or any part thereof or adjoining or near thereto or otherwise (3) the Railway Company in respect of the Railway or any branch thereof (including the Railway that company's portion of the tramroad and the branch) or otherwise (4) the Railway Company (5) any other railway canal water or other company or local authority or corporation or person or persons having any rights or powers affecting or which may affect the said lands and hereditaments or the said demised mines or any part thereof respectively (6) any lessees or tenants' underleases agreements or tenancies in existence at the date of these presents (including leases which may be granted subsequently to the date of these presents in pursuance of agreements in existence at the date of these presents) of the said lands and hereditaments or any part thereof or of any buildings from time to time thereon or of the said superincumbent strata (7) any owners lessees or tenants of adjoining or neighbouring land or of any buildings or works now erected or which may hereafter be erected upon any adjoining or neighbouring land or of any mines or minerals not hereby demised and subject to the payment to the lessor and his lessees and tenants and all other persons companies and corporations (including local authorities) respectively of full compensation for all loss damage or injury in accordance with the covenant in that behalf hereinafter contained.

5. To equip maintain and use the said surface land secondly hereinbefore appointed and demised for the purposes of colliery railway or sidings and to use the said surface land thirdly hereinbefore appointed and demised for any colliery purposes (except tipping for any other purpose than that of making railway sidings).

6. All the acts works and things authorised to be done or made by the lessees as hereinbefore mentioned in this part of this. schedule shall be respectively so done or made in a proper substantial manner and no act work or thing authorised by these presents to be done or made by the lessees shall be so done or made as in anywise to prejudice diminish or interfere with any rights privileges or powers heretofore acquired by or conveyed or agreed to be conveyed to any railway or water company or local authority or any of their respective predecessors in title or estate and the lessees shall not work cut through or affect the minerals or substances under or near to such parts of the said lands and hereditaments as belong to any railway or water company or sewerage board or local authority otherwise than in strict compliance with the provisions in that behalf contained in the Acts of Parliament relating to such company board or local authority and its properties respectively.

Part 2.

Exceptions and Reservations out of this Lease to the Lessor together with certain Grants by the Lessees to the Lessor relating to Lands not belonging to the Lessor.

1. All minerals mines strata matters and things in upon or under the said lands and hereditaments other than the said demised mines.

2. Full powers exercisable by the lessor his tenants and lessees both present and future and his and their agents and workmen and others by his and their permission or on his or their behalf overground and underground to do and make all acts matters and things necessary or' convenient for winning working manufacturing and carrying away the said excepted minerals mines strata matters and things and the produce of other mines and premises and for these purposes to cause subsidence of or other injury to the said surface land secondly and thirdly herein before described without making to the lessees any compensation in respect thereof and also for these purposes to sink through the demised mines or any of them and to cross and intersect the workings and roads of the lessees doing as little damage as reasonably practicable and making to the lessees reasonable compensation for any loss damage or injury which they may sustain in consequence thereof or in relation thereto the amount of such compensation to be settled in case of dispute by arbitration as hereinafter provided.

4. Liberty and power for the lessor and his agent or agents and any other person or persons by his reasonable permission or on his behalf at all reasonable times during the continuance of this demise to enter upon or into the demised premises and all pits shafts headings levels adits or workings in or belonging to the demised mines or used in conjunction or connection therewith and upon or into all lands used in connection therewith by the lessees in order to view and examine on any reasonable occasion and for any reasonable purpose to show to any other person or persons the state and condition of the hereby demised premises or any parts or part thereof and to inspect measure and dial the demised mines and also to inspect and examine any weighing

machines scales weights or apparatus for the time being used by the lessees for weighing the minerals which shall be worked or gotten or the minerals which shall be conveyed under or by virtue of any of the powers or authorities hereby granted and to adopt such methods as may be deemed necessary or convenient for testing the accuracy of any such machines scales or weights or apparatus and also to weigh any such minerals respectively and for these purposes to use any such weighing machines scales weights or other apparatus as aforesaid and to enter upon or into any adjoining or neighbouring lands or mines now or hereafter to be possessed or occupied by the lessees on or in which any such weighing machine or apparatus may stand and for the purposes mentioned in this paragraph or any of them or for the purposes of any other entry operation or thing authorised by these presents to have the use free of charge of the engines cages tackle plant and other apparatus belonging to the demised mines or to any adjoining or neighbouring premises for the time being possessed or occupied by the lessees and worked in conjunction or connection with the demised mines or with any parts or part thereof but so that in the exercise of any of the powers contained in this paragraph as little hindrance as reasonably practicable shall be occasioned to the lessees and their undertaking.

5. Liberty and power for the lessor his agent or agents and workmen and others on his behalf to enter into the demised mines at all reasonable times during the last year of the occupation by the lessees of such premises under these presents for the purpose of doing any acts or things necessary or useful for the future working of the demised mines or any works carried on therein and to do any such acts or things accordingly and for the purposes aforesaid to have the use free of charge of any pits accesses engines cages tackle plant or other apparatus for the time being belonging to the leesses paying reasonable compensation to the lessees for any damage caused to them by reason of such acts.

Part 3.

Rents, Royalties, and Wayleave Rents reserved by this Lease. 1. For and in respect of the demised mines yearly during the said term (and so in proportion for any time less than a year) the certain yearly rents following that is to say for the first five years (commencing from the day of 19 ) of the said term the certain yearly minimum rent of £ for and during the next five years of the said term the certain yearly minimum rent of £ and for and during the eleventh and every subsequent year of the said term the fixed or minimum rent of £ which said minimum rents are hereinafter sometimes called "minimum rents."

d. for

2. For and in respect of all coal which shall be worked or gotten from or out of the demised mines the royalties following that is to say at all times during the said term a royalty of every 22401b. weight (which quantity is hereinafter referred to as a ton) of coal (whether large or small coal) so worked or gotten.

3. For and in respect of all ironstone which shall be worked or gotten from or out of the demised mines the royalty of d. for every ton so worked or gotten and for and in respect of all fireclay which shall be worked or gotten from or out of the demised mines and which shall be sold or converted into bricks the royalty of d. for every ton so worked or gotten and sold

or converted into bricks. PROVIDED ALWAYS that in the case of fireclay worked or gotten in one half-year but sold or converted into bricks in another half-year the royalty thereon shall be paid in the half-year in which the fireclay shall be sold or converted into bricks.

4. For and in respect of all coal and other minerals the produce of any mines other than the demised mines which shall be brought into or carried through the demised mines or the workings therein or any part thereof the wayleave rent of ton so brought or carried.

d. for every

POOLING INSURANCE.-The Licenses Insurance Corporation and Guarantee Fund Limited has established an entirely new scheme of Insurance for Fire, Burglary, Workmen's Compensation, &c., by which the profits accrue to the insured. (See p. vi. inset)—[ADVT.]

FIXED INCOMES.-Houses and Residential Flats can now be Furnished on а new system of Deferred Payments capecially adapted for those with fixed incomes who do not wish to disturb investments. Selection from the largest stock in the world. Everything legibly marked in plain figures. Maple and Co. Ltd., Tottenham Court-road, London, W.-[ADVT.]

NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL COURTS.

HOUSE OF LORDS.

Debtor and Creditor-Bank-Mortgage-Notice of second Mort gage-Appropriation of Payments.

G., a customer of the respondent bank, gave them in Sept. 18% a mortgage on certain property for £2500 to secure an overdraft. In Dec. 1895 he gave a mortgage on property, including the property mortgaged to the bank, to the appellant for £3500. Notice of this mortgage was given to the bank, but the fact was overlooked by the bank manager, and G.'s account was continued as an ordinary banking account to the credit of which payments were made from time to time by G., and the account was balanced periodically, and a pass-book was from time to time sent to G. The result was that in Jan. 1896 the whole amount due to the bank on their mortgage at the date of the notice of the second mortgage was paid off, if the rule in Clayton's case (1 Mer. 572, 605) applied. In 1898 G. became bankrupt, his account with the bank being at that time overdrawn.

Held, that the rule in Clayton's case applied, and that the appellant's mortgage had priority over the mortgage to the bank. Judgment of the Court of Appeal (102 L. Ť. Řep. 556; (1910) 1 Ch. 648) reversed.

[Deeley v. Lloyd's Bank. H. of L. July 26.-Counsel: P. 0. Lawrence, K.C., Buckmaster, K.C., and Sheldon; Astbury, K.C. and Stamp. Solicitors: Field, Emery, Roscoe, and Medley, for F. Deeley, Dudley; P. W. Chandler, for Hooper and Fairbairn, Dudley.]

Will-Construction-Succession-Provision to Widow of "Liferent and Enjoyment" of House-Liferent or Occupancy-Incidence of Burdens.

A testator by his will directed his trustees to give to his widow the "liferent, use, and enjoyment" of his house, to pay her an annuity, to set aside a certain sum to provide for the same, to distribute the residue of his estate between his widow and his brothers, and, on the death of his widow, to divide the price of the house and the annuity fund, with any surplus revenue accrued thereon, among his brothers. On the death of the testator the widow entered into possession of the house.

pro

Held, that the widow had a “liferent" and not a mere occa pancy, and was liable to pay all rates and burdens on the perty falling on the proprietor, and could not claim a right to be repaid by the trustees out of the testator's estate. Judg ment of the Second Division of the Court of Session in Scot land (1911, Sess. Cas. 321) reversed.

[Mackenzie v. Johnstone. H. of L. July 26.-Counsel: McLennan, K.C. and J. S. Mercer; The Dean of Faculty (ScottDickson, K.C.), Constable, K.C., and W. Lyon Mackenzie (all of the Scottish Bar). Solicitors: J. Kennedy, for Cumming and Duff, Edinburgh; Long and Gardiner, for Bonar, Hunter, and Johnstone, Edinburgh.]

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Sale of Land-Reservation of Mines, Minerals, and Springs of Oil-Natural Gas Wells.

its

The appellants' predecessors in title sold to the respondent certain land "excepting and reserving to the said company, successors and assigns, all mines and quarries of metals or minerals, and all springs of oil in or under the said land, whether already discovered or not, with liberty of ingress, egress," &c.

Held, that the reservation did not include natural gas found under the land, though such gas was found in conjunction with springs of oil, and was scientifically identical with it. Judgment of the Court of Appeal for Ontario affirmed. [Barnard Oil and Gas Company v. Farquharson. Priv. Co. July 31.-Counsel: Sir R. Finlay, K.C., Hellmuth, K.C. (of the Colonial Bar), and Rowlatt; Danckwerts, K.C. and MacInnes, K.C. (of the Colonial Bar). Solicitors: Freshfields; Blake and Redden.]

COURT OF APPEAL. Divorce-Petition by Wife-Undefended-Delay in bringing Peti tion-Discretion of Judge-Refusal of Decree-Appeal-Matri monial Causes Act 1857 (20 & 21 Vict. c. 85), s. 31.

H. P. petitioned for a dissolution of her marriage with J. P. on the grounds of his desertion and adultery. The suit was undefended. The parties were married in 1886. The petitioner afterwards became addicted to habits of intemper ance, and in 1889 went into a home for inebriates. She remained there for two years. During a portion of this time the respon

dent lived in adultery with N., a former servant in the parties' employ. As he refused to give up the girl, the petitioner, after her departure from the institution, went into service. She had had no means to bring proceedings before, and was now being assisted by a clergyman who knew all the facts. The petitioner in course of her evidence said that she did not desire to marry again, but had brought her petition in order that her husband could marry the woman N., by whom he had had several children. Sir S. T. Evans, P. considered that, as the petitioner had not brought the proceedings to protect herself or get relief from the matrimonial tie, the delay of seventeen or twenty years ought to make the court refuse her a decree in the exercise of the discretion given it by sect. 31 of the Matrimonial Causes Act 1857: (133 L. T. Jour. 154).

Held, that the Court of Appeal would not interfere with the exercise of his discretion, the petitioner not having shown that the judge had decided the case on wrong principles of law.

[Pears v. Pears. Ct. of App.: Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ. July 24.-Counsel: Hume-Williams, K.C. and Grazebrook. Solicitors: Ellis and Collier.]

Employer and Workman-Death caused by Accident-Compensation-Claim by Dependant - Unexplained Disappearance of Seaman from his Ship-Fireman coming on Deck—" Accident arising out of and in the Course of the Employment”— Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), ss. 1, 7.

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An arbitration under the Workmen's Compensation Act 1906 was requested between the widow of a deceased workman and his employers as to the liability of the latter to pay compensation under that Act to her as the sole dependant of the former in respect of the injury caused to her by the workman's death through an accident arising out of and in the course of " his employment. The case came on to be heard at the County Court of Northumberland holden at North Shields before His Honour Judge Greenwell in May 1912, when the facts as found by the learned County Court judge were stated in his written judgment to be as follows: It was proved that the deceased, who was a fireman on board a steamship belonging to his employers, was sound in mind and body, and that his domestic relations were happy. There was nothing to indicate that he would take his own life, and it was not suggested that he did so. On the 3rd Dec. 1911, at 4.30 a.m., in the course of a voyage, the steamship being then in the tropical regions, the deceased was seen at work at the fires, whilst at 4.45 a.m. he was found to be missing. A search was made, but the deceased was never seen afterwards. His watch was from twelve midnight to 6 a.m., and it was proved that during the time prior to his disappearance he was doing his work to the best of his ability. Shortly before he was missing he was seen on deck getting a drink. It was proved that in tropical regions it was the habit of the firemen to go on deck for fresh air. The question to be decided was whether there was any evidence to show that the accident arose "out of and in the course of " his employment, or sufficient evidence whereby the learned County Court judge could draw such an inference. His Honour was of opinion that it could not be disputed that the deceased lost his life by falling overboard. He considered that he was justified in drawing the inference that the deceased, being on watch performing his duty and in order to better perform that duty, had come on deck for a drink and for fresh air and had fallen overboard; and that therefore the accident arose "out of and in the course of " his employment, and the dependant of the deceased was entitled to the sum of £284 10s. by way of compensation. The employers appealed.

Held, that the learned County Court judge was perfectly right in drawing the inference that he did; and that therefore the dependant of the deceased was entitled to the compensation which had been awarded to her. Owners of Ship Swansea Vale v. Rice (104 L. T. Rep. 658) applied. Appeal dismissed.

[Lee_v. Stag Line Limited. Ct. of App.: Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ. July 17.-Counsel: for the appellants, Alexander Neilson; for the respondent, Harold Morris. Solicitors: for the appellants, Holman, Birdwood, and Co.; Bramwell, Bell, and Clayton, North Shields; for the respondent, Crossman, Prichard, and Co., agents for George Rix Duncan, North Shields.]

Employer and Workman-Injury by Accident-CompensationAgreement to pay-Review of Agreement—“ Industrial Disease -Miner's Nystagmus-Partial Recovery from Disease-Increased Susceptibility thereto-Workman incapable of performing Work Underground-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), ss. 1, 8; sched. 1, s. 16.

Personal injury was caused to a workman by accident arising out of and in the course of his employment, in respect of which compensation under the Workmen's Compensation Act 1906 was admittedly payable to him by his employers. It appeared that the workman, who was a collier

employed at a colliery belonging to his employers, suffered from an attack of miner's nystagmus, which affected his eyesight and incapacitated him for work. His disablement was duly certified as having commenced on the 30th Nov. 1910. He was paid compensation at the rate of £1 per week for a period, when the weekly payment was stopped. He then applied to the County Court judge for continuation of his compensation, and on the 19th Sept. 1911 he was awarded seven months' arrears at £1 a week and thereafter reduced compensation of 13s. 6d. per week, he being then able to do light work. On the 27th March 1912 the employers applied to the County Court judge for a termination or diminution of the weekly payment of 13s. 6d. on the ground of the workman's physical recovery or partial recovery from the disease. The workman alleged that he had not recovered, but only partially recovered, and was unfit to do any work underground. On the 31st May 1912 the case came on to be heard at the County Court of Carmarthenshire holden at Llandilofawr, when medical evidence was given that the workman had been examined and no nystagmus could be detected, but that he was susceptible to a second attack if he went underground, and that therefore he could not be advised to do underground work again. Another doctor stated that he examined the workman on the 10th April 1912 and found an unsteadiness in the eye where nystagmus had occurred. The muscles had not recovered their strength, and he would not advise him to go underground, as the susceptibility was increased if he had once had nystagmus. The workman was accordingly employed in surface work. It was decided by the learned County Court judge that the workman was not then suffering from nystagmus, but was unable to work underground. His tendency to nystagmus was due to the previous attack of the disease, and there was an increased susceptibility to nystagmus. therefore dismissed the employers' application. The employers appealed.

He

Held, that the element that was lacking in Jones v. New Brynmally Colliery Company Limited (106 L. T. Rep. 524) was present in this case; and that therefore a right conclusion had been arrived at by the learned County Court judge. Appeal dismissed.

[Garnant Anthracite Collieries Limited v. Rees. Ct. of App. : Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ. July 22.Counsel for the appellants, George H. Scott; for the respondent, Villiers Meager. Solicitors for the appellants, Smiles and Co.; for the respondent, J. T. Lewis, agent for Randall, Saunders, and Randall, Swansea.]

Employer and Workman-Death caused by Accident-Compensation-Claim by Dependant-" Average weekly Earnings "-Basis of Computation-No Change of Grade-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), s. 1.

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An arbitration under the Workmen's Compensation Act 1906 was requested between the dependants of a deceased workman and his employers as to the liability of the latter to pay compensation under that Act to them in respect of the injury caused to them by the workman's death through an accident arising out of and in the course of" his employment. On the 4th Dec. 1911 the case came on to be heard at the County Court of Lancashire holden at Salford before His Honour Judge Stanger. The question then argued was how the "average weekly earnings" of the deceased during the twelve months before the accident ought to be computed in order to arrive at the amount of compensation payable to his dependants. It appeared that the deceased was engaged by his employers as a casual carter on the 19th May 1911. His duty was to drive a one-horse cart or lorry. His death through the accident complained of took place on the 27th July 1911. For about ten days, or a fortnight, he had been working as a casual teamster driving two horses and receiving a somewhat larger pay. What had to be ascertained was the amount of 156 times his average weekly earnings during the period of his casual employment under the same employers. The learned County Court judge made an award for the dependants for £170 6s., or such sum as the registrar found to result from the following calculation: Exclude one week-viz., the strike week-from the divisor and divide the total wages earned by 9 in order to arrive at the weekly average, and then multiply by 156. On the question of fact His Honour accepted the employers' version and found that the deceased was only employed temporarily and casually as a teamsman while the employers were on the look-out for a regular man. On appeal:

Hell, that the learned County Court judge in adding up the total amount of wages got from the 19th May 1911 to the date of the workman's death, whether earned as a casual carter or as a casual teamster-there being no change of grade-had not misdirected himself, but had complied with the provisions of the Act; and that therefore his decision was justified. Babcock v. Young (4 B. W. C. C. 367) and Dobson v. British Oil