as a complete answer to any suggestion that he is unreasonable in refusing to undergo it. The Court declined to countenance such a doctrine, for "if such were laid down this part of the Act would really become a dead-letter, because in the wide world of medicine it would almost always be possible to obtain a perfectly genuine, though eccentric opinion from some qualified medical man to any effect that might be desired, within limits."

Proceeding to examine the facts of the case before them, the Court found that all the medical men concerned, those advising the workmen (two in number) as well as those advising the employer (three in number), were agreed that the operation would not be attended by any risk or danger, and that at the worst no material harm could come of it, though the workman's doctors took the more pessimistic view that no good was likely to result from an operation. Thereupon, after reviewing the whole medical evidence and the circumstances, they further found that there was a reasonable certainty that, as the result of the operation, the man's wage-earning capacity might fairly be ascribed to his refusal to undergo the operation, and that such refusal was unreasonable. In consequence of that finding, the compensation hitherto paid to the workman was ended.

In the case of Gibb v. The Edinburgh and District Tramways Company ([1913], 1 S. L. T. 144), there is an interesting reference to the relation of contributory negligence to primary negligence in actions of reparation. The argument for the pursuer was one which, in brief, embodied the theory. fairly deducible from certain recent decisions in the English Courts, namely, that an injured person cannot be responsible for contributory negligence if the primary negligence was of such a character that it was continuous before, during, and after the accident. The Court have definitely discountenanced that theory in the case mentioned, being of opinion that the authorities do not justify it.

The National Insurance Act 1911, s. 66 (1) enacts, “If any question arises . . . . (c) as to the rates of contributions payable in respect of an employed contributor by the employer and the contributor respectively, the question shall be determined by the Insurance Commissioners in accordance with regulations made by them for the purpose." A firm of employers brought an action for reduction of a determination of the commissioners, fixing the rates of contributions payable by the pursuers and one of their employees respectively under Part I of the National Insurance Act 1911. It was not averred that the Commissioners had refused to hear parties, or that they had acted otherwise than in good faith in determining the question. It was held (Don Bros., Buist & Co. Ld. v. Anderson and Others [1913], 50 S. L. R. 361), that the Court had no jurisdiction to interfere with the decision of the Commissioners, and action dismissed.

Another public statute (The Finance Act 1909-10) has likewise been the subject of a judgment of extreme intricacy in Commissioners of Inland Revenue v. Walker ([1913], I S. L. T. 309). It will be remembered that that statute provides a system of bringing cases before a statutory official known as a Referee, and he may state a case for the opinion of the Court of Session. In the decision mentioned, which was brought up under such procedure, it was held (1) that the Referee was entitled to find that part of the price paid for certain subjects was "attributable to a personal element," and (2) that the deductions allowed to be given from total value in order to bring out site value are not necessarily those allowed in the original valuation made as at 30th April 1909, but must be ascertained afresh on the occasions on which Increment Value Duty is to be collected.

D. M.

IRISH CASES.

The question of the validity of the condition of sale which was challenged in In re Biggs-Atkinson & Ryan's Contract [1913], 1 Ir. R. 125, depends upon the extent of the incidental powers given by the Settled Land Act to a tenant for life in carrying out his statutory power of sale. The lands in the present case were subject to a rent-charge. The tenant for life put them up for sale by private treaty in six separate lots. A condition of sale provided that each lot should be sold subject to the entire rent-charge, but should be primarily liable only for an apportioned part thereof; that the purchaser of each lot should covenant for the payment of such apportioned part, and for the indemnity of the other lots as regards such apportioned part only, and should charge all moneys payable on foot of such covenant on such lot; and that the vendor, for the purpose of this condition, should stand in the place of, and be deemed to be, the purchaser of any unsold lot or lots. The purchaser of one lot objected that the Settled Land Act did not empower a vendor to give such a rent-charge as was proposed in respect of the unsold lots. The Court, however, held the condition of sale valid, considering that the case was really covered by In re Judd & Skelcher & Poland's Contract, (L. R. [1906], I Ch. 684). The condition proposed was thought to be, in Ireland, an ordinary mode of carrying out such a sale.

Whether the decision in Grace v. Walsh ([1913], 1 Ir. R. 69), is right, even on its special facts, may be doubted; but it seems clear that the case can be of little use as a general authority. A will contained the following investment clause: "My trustees being at liberty to sell all my ships, houses, and invest same as they think most desirable, but not in the British funds; my trustees to be free from all liability in investing any of the money received for the sale of any of my property." It was held, that this curious clause authorised

the trustees to invest the proceeds of sale in the purchase of freehold lands in England or Ireland. No doubt sect. 1 (b) I of the Trustee Act 1893, gives trustees, unless expressly forbidden to do so, a power to invest in "real securities," but this has always been taken to mean only an investment upon mortgage. Our old friend Snell (Equity, 16th ed., p. 121) states simply: "A power to invest in real securities does not, of course, authorise the trustees to invest in the purchase of lands, because that is an alienation out and out of the trust property; and for such an alienation an express power is required." If the present decision is to be supported, it can only be by giving an unusually wide effect to the words "as they think most desirable," and to the words importing complete freedom from liability for any investment; and even so, there still remains the uncomfortable question, was this an investment at all? On the whole, the case seems one which might have been better left unreported.

The Court's power of giving leave to issue a writ for. service out of the jurisdiction is, as everyone knows, confined strictly to the classes of cases mentioned in the Rules of Court (Ord. XI, R. S. C. Ir.). It is decided in Clare Co. Council v. Wilson ([1913], 2 Ir. R. 89) that the power does not exist in the following case. The Public Roads (Ireland) Act 1911, enables a county council to bring an action to recover extraordinary expenses necessary for repairing roads, by reason of damage caused by excessive user of the roads; and that Act makes the person guilty of such excessive user liable to recoup such expenses. An Irish county council wished to bring an action, under this Act, against a person resident in Scotland: held, that the leave of the Court to issue and serve the writ out of the jurisdiction could not be given. Two clauses of Ord. XI, r. I, were suggested as applicable. Clause (f) gives jurisdiction where a contract,

which is sought to be enforced or otherwise affected in the action, or for the breach whereof damages or other relief is or are demanded, was made or entered into within the jurisdiction. The liability here was held not to be in contract, express or implied: it was a statutory liability, and more akin to a tort than a contract. Again, clause (b) applies where any act, deed, obligation or liability, affecting lands within the jurisdiction, is sought to be enforced in the action. But the liability here did not affect lands, any more than trespass or nuisance could be said to be a liability affecting lands.

The case of Cronin v. O'Connor ([1913], 2 Ir. R. 119), presents a curious state of facts, apparently uncovered by any previous direct authority. The owner of lands had a right of cutting and saving turf on a plot of an adjoining bog. This plot was not fenced or divided off from the rest of the bog. The man who owned the soil and freehold of the bog depastured cattle upon it; they did harm to the turf which was cut and spread upon the plot in question; the bogowner had made no provision for preventing such damage by his cattle to the turf. The person entitled to the right of turbary sued the bog-owner for trespass, and it was held that the action would lie. The wrong consisted in an unreasonable use of one's own property, having regard to the dominant tenant's profit à prendre. There are, said the Court, two rights in the one subject-matter: the natural right of the owner of the bog to the soil and freehold, and the incorporeal right in the nature of a profit vested in the plaintiff, in respect of the same bog; which is to give way? Evidently, if a profit à prendre is founded on an implied grant, and if a man may not derogate from his own grant, the general rights of the servient owner must give way so far as is necessary for the due enjoyment of the particular right of the dominant owner.

J. S. B.