Rosie (1907), 45 S. L. R. 178; 1 B. W. C. C. 52), and generally speaking a long succession of payments and receipts will be conclusive (Fowler v. Hughes (1903), 5 F. 394).

An agreement may also be implied from the fact that the workman has received wages for the period in question, as was the case in Baird & Co. v. Dempster, [1909] S. C. 127; 2 B. W. C. C. 144. The workman in that case returned to work at less wages than before the accident, but the amount exceeded the maximum compensation. He remained thus for seven years, during which time he occasionally but unsuccessfully asked for something to make up the deficiency. After incapacity had ceased he brought proceedings claiming some compensation during the seven years, and was awarded a lump sum of £100. It was held that he was barred personali exceptione from so claiming,

But an agreement to release the employer from further liability cannot be implied merely from the fact that the injured workman has, after receiving compensation for some time, returned to work without anything being said on either side as to the cessation or the continuance of the compensation (Williams v. Vauxhall Colliery Co., Limited, [1907] 2 K. B. 433; 9 W. C. C. 120).

Agreements with Infants.-Infants are not bound at common law by contracts which are not for their benefit, and the fact that the definition of "workman given by the Act includes an apprentice does not alter the common law rule for the purposes of the Workmen's Compensation Act. So that if an infant can show that his election under this sub-section is not for his benefit he will not be bound by it, and will be able to bring an action, notwithstanding an agreement to accept, and actual acceptance of, payments under it (Stephens v. Dudbridge Ironworks Co., [1904] 2 K. B. 225; 6 W. C. C. 48; Ford v. Wren and Dunham (1903), 5 W. C. C. 48, per WRIGHT, J. See also Robertson v. Henderson & Sons, Limited (1905), 7 F. 776).

An option to claim compensation after an unsuccessful action exercised by the next friend of an infant under s. 1, sub-s. 4, is a statutory bar, and stands on a different footing from a contract made with an infant, and is binding upon him (Neale v. Electric and Ordnance Accessories Co., Limited, p. 47, ante). As to compromise after an appeal has been lodged, see p. 189, post.

Agreements with "Insured Persons."-As to the duty of employers under the National Insurance Act, 1911, see Appendix A., p. 207, post.

Recording Agreements.-The recording of a memorandum of agreement in the proper county court is highly advisable though not obligatory. In certain cases registration is necessary if the employer wishes to protect himself (see Sched. II. (10), p. 193, post). A settlement of all disputes made before any weekly payments have been made does not require registration to be effective (Ryan v. Hartley (1912), 5 B. W. Č. C. 407, and see p. 199, post).

Setting aside Agreements.-It is always competent to the workman to ask for relief from what purports to be an agreement, on the ground that it was obtained from him by fraud or undue influence, or similar improper means, or was entered into under such circumstances as would render it inequitable to hold him bound by its terms (Hunter v. Darngavil Coal Co., Limited (1900), 3 F. 10; Fowler v. Hughes (1903), 5 F. 394; and see the judgments in Little V. MacLellan (1900), 2 F. 387, and in Dornan v. Allan & Son (1900), 3 F. 112. See also Crossan v. Caledon Shipbuilding and Engineering Co. (1906), 43 S. L. R. 852; Valenti v. William Dixon, Limited (1907), 44 S. L. R. 532; Hawkes v. Richard Coles & Sons (1910), 3 B. W. C. C. 163, p. 53, ante; Niddrie and Benhar Coal Co. v. Hanley, p. 197, post; Macandrew v. Gilhooley, [1911] S. C. 448; 4 B. W. C. C. 370). For this purpose it is not necessary to take proceedings independently of the Act, since the validity of the agreement is a question as to the liability of the employer to pay compensation within s. 1, sub-s. (3) of the Act. A workman signed a discharge which purported to be in full satisfaction of all claims past and future, in the belief that he was signing a receipt for compensation in arrear. The employer's cashier took the receipt, thinking that the man had recovered, whereas he was still totally incapacitated. On appeal from an award granting compensation, it was argued that the arbiter was bound to apply the discharge as such until it was reduced by proper legal process. It was held that the arbiter had not misdirected himself in law, and that the question as to the validity of the discharge was a question as to liability to pay compensation within s. 1 (3) of the Act (Ellis v. The Lochgelly Iron and Coal Co., Limited (1909), 46 S. L. R. 960; 2 B. W. C. C. 136).

Where there was only one payment and receipt, and the workman averred that he had signed the receipt without being aware of its terms, the Court of Session held that there was no binding agreement sufficient to bar proceedings (Fowler v. Hughes (1903), 5 F. 394); so where the arbitrator found that the workman had signed a final discharge after seven weeks' payment, believing that he was merely giving a receipt, and without any idea that he was signing away his statutory rights (O'Callaghan v. Martin (1904), 38 Ir. L. T. R. 152).

The mere fact that medical opinion on both sides has been proved to have been mistaken will not of itself afford a ground for rendering an agreement of discharge null and void (Dornan v. Allan & Son (1900), 3 F. 112).

The Act gives wide powers to the Registrar of the county court in which it is sought to record an agreement to act on any information which he considers sufficient, and to refuse to register the agreement in certain cases and on certain grounds without an order of the judge to do so (Sched. II. (9) (d), and p. 192, post), and in similar cases and circumstances the judge may, within six months of the recording of a memorandum of agreement, order the removal of the record (Sched. II. (9) (e), p. 193, post).

Enforcing Agreement.-A recorded agreement is enforceable as

a county court judgment. An unrecorded agreement can only be used as an answer to a request for arbitration or as a defence in an action. It cannot be itself the subject of an action (Cochrane v. Traill & Sons (No. 1) (1900), 2 F. 794).

By agreement the workman was to be given, in lieu of weekly payments, a lump sum and regular employment as a foreman at certain wages. After three years he was dismissed, owing to a dispute, and brought an action for breach of the agreement. It was held that the action was irrelevant on the ground that there had been no breach of agreement, as the employers had given regular employment for a considerable time, and was incompetent because an agreement under the Act could only be enforced under the Act (Lawrie v. James Brown & Co., Limited (1908), 45 S. L. R. 477; 1 B. W. C. C. 137).

See further as to the effect of registering agreements, p. 197, post.

2. BY ARBITRATION.

"If any Question arises."—It is a condition precedent to the jurisdiction of the arbitrator that a question should exist at the time of launching the application for arbitration (Higgins v. Poulson (No. 1) (1911), 5 B. W. C. C. 66), either as to the liability of the employer to pay, or as to the amount or duration of compensation.

Hence it has been held that the arbitrator has no jurisdiction to entertain an arbitration or to make an award: where employers promise to continue payments under the Act to the full amount, and so long as the period of incapacity shall continue (Field v. Longden & Sons, [1902] 1 K. B. 47; 4 W. C. C. 20; Jones v. Great Central Rail. Co. (1901), 18 T. L. R. 65; 4 W., C. C. 23), or so long as the employers are paying the proper compensation (Field v. Longden, supra), even though at the time of making payments they from time to time intimate their opinion that the incapacity has ceased (Sweeney V. Gourlay Bros. & Co. Dundee), Limited (1906), 43 S. L. R. 690), or say that they are only going to continue compensation so long as their own medical man says there is incapacity (Payne v. N. Fortescue & Sons, Limited, [1912] 3 K. B. 346; 5 B. W. C. C. 634; but see in Scotland, J. Brown & Co., Limited v. Hunter (1912), 49 S. L. R. 695; 5 B. W. C. C. 588); where a registrar, subsequently supported by the judge, wrongly refused to register an agreement on the ground that it was not " genuine" (see p, 194, post), (Fox v. Battersea Borough Council (1911), 4 B. W. C. C. 261); when a workman, satisfied with the payments he had been receiving for months was urged by the trades union to try and get more (Plant v. Oldnall Colliery Co. (1903), 114 L. T. Newsp. 284); where the employer has had no opportunity of either paying or disputing his liability, as where a notice of accident was given on one day and proceedings for arbitration were taken the next day (Caledon Shipbuilding and Engineering Co., Limited v. 'Kennedy (1906), 43 S. L. R. 430, 687); where a workman being in receipt of half wages it was discovered that being a minor he was entitled to full wages, and the respondents immediately tendered the money, which was refused, as costs alleged to be due were not also tendered (Smith v. The Abbey

Park Steam Laundry Co., Limited, 2 B. W. C. C. 142); where an employer agreed to pay the compensation claimed, but refused to sign a form of agreement, and the registrar having regard to the rule then in force (Rule 42a (4) of 1908 (No. 2) now withdrawn) refused to record a memorandum (Mercer v. Hilton (1909), 3 B. W. C. C. 6),

On the other hand a question was held to have arisen so as to give the arbitrator jurisdiction: when, under the original Act, the employers refused to pay a widow until she had taken out letters of administration or otherwise qualified herself for giving a discharge (Clatworthy v. Green (1902), 86 L. T. 702; 4 W. C. C. 152, but this cannot arise now having regard to Sched. I. (5)); where the correspondence relied upon as being an agreement which ousted the jurisdiction to entertain the arbitration did not amount in law to an agreement (Brooks v. Andrew Knowles & Sons, Limited (1911), 5 B. W. C. C. 15); where payment was tendered only on condition of the workman signing a particular form of receipt expressing that liability was admitted only for the compensation to the date of payment, and that further liability was to be determined week by week (Freeland v. Summerlee Iron Co., Limited (1912), 49 S. L. R. 841; 5 B. W. C. C. 598); where at the time of making application for arbitration there was no question in dispute but one was raised by the answer (Barron v. Carmichael (1912), 5 B. W. C. C. 437).

An admission of liability, to a certain date, accompanied by a request to terminate further liability, raises a question for settlement (Bowhill Coal Co. (Fife), Limited v. Malcolm (No. 1) (1909), 46 S. L. R. 354; 2 B. W. C. C. 131).

By the Rules under the Act it is now necessary to state concisely in the request for arbitration the question which has arisen between the parties (W. C. R. 8, p. 212, post).

See further on the procedure in arbitrations, p. 183, post.

When Proceedings for Arbitration are Barred.-Proceedings for arbitration may be barred by the workman having elected to proceed by action (see p. 44, ante); or by a valid agreement between the parties (see p. 53, ante); or by an award finally determining the matter (Nicholson v. Piper, [1907] A. C. 215; 9 W. C. C. 123, and see p. 174, post); or by having adopted a certified scheme under the Act (see p. 72, post); or by having recovered damages from a third party under s. 6 (see p. 88, post). It would also appear that the circumstances may be such as to create an estoppel. Thus, a workman brought an action but was held barred by his having elected to accept payments under the Act (see Mackay v. Rosie, p. 53, ante). Thereupon an agreement was recorded. It was held that he could not claim compensation for the period before the recording of the agreement as he had acquiesced in the discontinuance of payments during the subsistence of the action (Rosie v. Mackay (1908), 46 S. L. R. 999; 2 B. W. C. C. 150).

It appears from a decision in the Scottish Courts that to operate as a bar to arbitration proceedings the agreement must be a subsisting agreement applicable to the circumstances. Thus, a workman received compensation for fourteen months. No agreement was registered, and there was no evidence of its having been ended or varied. He

returned to work and so continued for seven years when he became totally incapacitated as a result of the original injury. It was held that a claim for compensation was maintainable; and that it was not barred by failure to register the original agreement, as it could not have been contemplated that the terms of the original agreement should apply to the circumstances (Dempster v. William Baird & Co., Limited (1908), 45 S. L. R. 432; 1 B. W. C. C. 62).

Arbitration Proceedings.-See Sched. II., p. 181, post.

Where a workman has lodged a claim against his employer, but does not follow it up by legal proceedings, it is open to the employer to make an application for the settlement of any matter by arbitration. As to the procedure in such applications, see W. C. R. 10, 14 (2), 17 (5), 18 (8), and 25.

As to the Liability to pay Compensation.-It may happen that the injured workman cannot at the time show that he is entitled to any pecuniary payment, because his employer is, out of compassion, paying him full wages. The Court of Appeal have laid it down that in such a case the workman is entitled to an award declaring the liability but adjourning the question of amount or to an award for a nominal sum (Chandler v. Smith, [1899] 2 Q. B. 506; 1 W. C. C. 19, and p. 40, ante; Irons v. Davis and Timmins, Limited, [1899] 2 Q. B. 330; 1 W. C. C. 26). The Scottish Courts do not approve of this method: see p. 175, post. In practice the same effect is obtained by insisting upon a memorandum of agreement being recorded.

No Claim for Wages in addition to Compensation.— A workman who has received compensation under the Act cannot claim wages during the time for which he has been incapacitated (Elliot v. Liggens, [1902] 2 K. B. 84; 4 W. C. C. 11).

(4) If, within the time hereinafter in this Act limited for taking proceedings, an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the court in which the action is tried shall, if the plaintiff so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act. In any proceeding under this sub-section, when the court assesses the compensation it shall give a certificate of the compensation