Wharton's Law Lexicon, 91.) Formerly its object was to enable the new lord to sue for his tenant's rent, for then no alienation of the reversion could affect the tenant without his own consent thereto. Such consent was given by attornment. No such consent is now required. It is now usually used in two cases only:

(1.) Where a mortgagee wishes to enter into possession of premises which are in possession of tenants claiming under leases made by the mortgagor alone since the date of the mortgage, he, instead of ejecting them and then re-letting the same premises to them, gets them to execute an attornment of tenancy to him; and if they refuse he commences proceedings for ejectment, subject, however, to the provisions of sect. 18 of the Conveyancing Act, 1881.

(2.) Where the mortgagor is himself occupying the premises which he is about to mortgage. In such a case it is usual to insert an attornment clause in the mortgage deed, so that the mortgagee may be enabled to distrain (like a landlord for his rent) for interest, and sometimes for principal, in arrear, provided in the case of principal the clause is extensive enough to cover it. It is still usual, notwithstanding the provision of 41 & 42 Vict. c. 31, making such a provision, unless registered like a bill of sale, invalid against the mortgagor's execution creditors and trustees for his creditors under an assignment, or a liquidation or bankruptcy petition, though it does not make it void altogether.

It has been held that the rent reserved by the attornment clause must be of a reasonable amount with regard to the value of the premises, otherwise the attornment will be void, as a fraudulent preference. (Re Stockton Iron Furnace Co., 48 L. J. Ch. 417; L. R. 10 Ch. D. 335; Ex parte Jackson, L. R. 14 Ch. D. 725.)

152. Take the case of a second mortgage of real estate. The mortgagor is dead, and there is reason to suppose that he died insolvent. Explain the different proceedings which can be taken in the interests of the mortgagee, and specify which of them would have to be prosecuted in the Chancery Division.

(1.) If the second mortgage confers by its terms or by 23 & 24 Vict. c. 145, or by 44 & 45 Vict. c. 41, a power of sale and a power to appoint a receiver, or either of them, he can exercise these

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powers, or either power, as the case may be, as soon as they arise, subject to the first mortgagee's interest.

(2.) He can institute an action for administering the mortgagor's estate, either in respect of the whole of his secured debt, or the balance (if any) after valuing or realising his security. If he sues for the whole of his debt, he must give up his security for the benefit of the creditors.

(3.) He can institute an action for redemption of the first mortgagee's claim, if the latter will not consent to being redeemed voluntarily, and to claim to foreclose any third or fourth mortgagee's interest (if any); and in the alternative he may claim a sale of the mortgaged property, and in either case to have a receiver appointed. (4.) He may claim a sale or redemption in the first mortgagee's action for foreclosure or sale (if any).

(5.) He may sue the personal representatives of the mortgagor under the covenant for his debt in the Queen's Bench Division.

In cases (2) (3) and (4) the proceedings will be prosecuted in the Chancery Division, unless the amount secured does not exceed £500, when proceedings may be taken in a County Court. (See H. A. Smith's Equity, 239 et seq.) The Court may in cases (2) (3) and (4) dispense with the personal representative of the mortgagor on its being shown that, owing to his having died intestate and insolvent, no one will take out administration under 15 & 16 Vict. c. 86, s. 44 (Haynes's Student's Stat., 2nd ed., 274), as was done in the case of Curtius v. The Caledonian Fire and Life Insurance Co., 51 L. J. Ch. 80.

NEGLIGENCE.

153. A. walking on the roadway is knocked down and injured by a cart and horse driven by B. in the same direction as A. is walking. A. might have avoided the accident had he been walking on the footpath. At the same time, B., by ordinary care, could have kept clear of A., and so also have avoided the accident. Give your opinion as to B.'s liability, if any, to A. for the injury, and refer to any leading case on the subject.

The law on the subject of contributory negligence is clear, viz., that though a defendant may have been guilty of negligence in a

given case which would render him liable to an action at the suit of the plaintiff but for the part the plaintiff has taken in contributing to his own loss or injury, yet the plaintiff can recover (notwithstanding the plaintiff's contributory negligence) if the defendant might by the use of ordinary care have avoided the consequences of the plaintiff's mere negligence.

Every person has a right to walk both on the footpath and on the road, with the reservation that he must use when walking on the road more caution than he need use when walking on the footpath. In the above case A. has been guilty of no contributory negligence; and even if he had B. would be liable, for B. was bound to avoid an accident if he could by using ordinary care, and in the above case he did not. The case referred to is probably the case concerning the ass which had been left out in a public road with its legs tied by the plaintiff. The defendant drove over it and killed it. The defendant was held liable, for he was bound to drive carefully and avoid touching the ass. (Davies v. Mann, 10 M. & W. 549; see also Boss v. Litton, 5 C. & P. 407; Addison on Torts, 5th ed., 572; Underhill on Torts, 137-9.)

154. B. takes a through ticket of the J. & S. Railway Company from London to a station on the G. & F. Railway, over which the J. & S. Railway Company have running powers. B. meets with an accident in the course of his journey on the G. & F. Railway through the negligence alone of that company's servants, and sustains thereby personal injuries. Is or is not the J. & S. Railway Company liable in damages to B. therefor? Give reasons for your answer, and refer to any case on the subject.

The J. & S. Railway Company are liable in damages to B., because they have broken their contract with B. The contract with B. is upon every principle of law not merely a contract that the railway company will not be guilty of any negligence, but a contract that B. shall be carried with due and reasonable care along the ́ whole line from one end of the journey to the other. (Thomas v. The Rhymney Railway Company, 40 L. J. Q. B. 89; L. R. 6 Q. B. 266; following Blake v. The Great Western Railway Company, 31 L. J. Exch. 346; 7 Hurls. & N. 987.) The case of Wright v. The

Midland Railway Company, 42 L. J. Exch. 89; L. R. 8 Exch. 137, seems, however, to conflict with the first and second cases above mentioned, and to decide the contrary. For a very recent case where the above cases were cited, Foulkes v. The Metropolitan District Railway Company, 49 L. J. C. P. 361; L. R. 5 C. P. D. 157, may be referred to, though the decision, being on a tort committed by the defendants, does not come within the terms of this question.

155. A local board employs a contractor to repair a road. The contractor completes the work, but leaves a heap of stones on the side of the road. B. is driving along the road, comes in contact with the heap of stones, his carriage is upset, and he sustains damage. Assuming there was no contributory negligence on the part of B., who will be liable to him for the damage, the local board or the contractor, and why? Are there any circumstances which might arise to render both liable?

Where a competent contractor is employed to do certain work the general rule is that the employer is not liable for the consequences of the contractor's default. The exceptions are: (1) where the employer retains his control over the contractor and personally interferes in the work, and makes himself a party to the act which occasions the damage, for then the contractor is reduced to a mere servant; (2) where the act contracted about is itself illegal; (3) where in the natural course of events, from the nature of the work to be done, injurious consequences are likely to arise, unless certain precautions are taken, and the employer has not seen that such precautions are taken; (4) where a legal duty is incumbent upon the employer, and the contractor omits or imperfectly performs such duty. (Underhill on Torts, 3rd ed., 51, 153; and see recent case of Bower v. Peate, 45 L. J. Q. B. 446; L. R. 1 Q. B. D. 321.)

In the above case the contractor alone will be liable, because the injuries sustained by the plaintiff were caused by the negligence of the contractor, or that of his workmen, which amounts to the same thing. The local board will not be liable, because it was not in the natural course of things that the contractor would be so negligent, and that such injurious consequences should happen to the plaintiff so as to bring the case within the principle of Bower v. Peate, supra. The principle of Bower v. Peate only applies to injuries which

could be foreseen by the employer. The above facts do not fall within any of the other classes. (See also Angus v. Dalton, 48 L. J. Q. B. D. 225; L. R. 4 Q. B. D. 162; and 50 L. J. (H. L.) Q. B. D. 689, where Bower v. Peate was approved of.)

Both would be liable if the contract had been to open the road and repair a sewer, and no barrier was placed round the opening by the contractor, and the plaintiff sustained damage through driving into the opening on a dark night, and no warning lights were to be seen.

156. B. undertakes for reward to receive a carriage belonging to C., and lodge it in a shed, which has just been erected by a builder -as an independent contractor for B. The shed is blown down by a high wind, and the carriage is damaged. B. was not aware of any defect in the shed, and he was not guilty of any negligence in selecting the builder. Advise C. as to his right of action, if any, against B. for the damage. Refer to any leading case bearing on the subject.

We should advise C. that he has no cause of action against B., because B.'s liability is only that of an ordinary bailee for hire. (See Searle v. Laverick, L. R. 9 Q. B. 122, where the facts were similar.) The case of Francis v. Cockrell, L. R. 5 Q. B. 184 and 501, was a case of damage to the person caused by the unskilful erection of a building for viewing a public exhibition, and is distinguishable from Searle v. Laverick, supra.

NEIGHBOURING PROPRIETORS.

157. Apply and explain the law in the following case :-A. constructed a reservoir on land separated from B.'s colliery by intervening land. B., before the construction of the reservoir had, by workings lawfully made, opened an underground communication between his own colliery and certain old workings under the reservoir. It was not known to A. that such communication existed, or that there were any old workings under the site of the reservoir. A was not personally guilty of any negligence. On the reservoir being