out of work, left his wife, and remained away until his death, some time afterwards, does not prevent her from being "dependent" upon him.40 But a deserted wife may, by her conduct, estop herself from claiming to be a dependent. 41

A posthumous child may be a "dependent" within the act.42 So, a child en ventre sa mere may be a dependent upon the earnings of its father, although indirectly through its mother.43 Illegitimate children may be dependents within the sense of the act; and this is so even if they are posthumous.44 Evidence of statements by a deceased workman that he was the father of an illegitimate child, 40 Coulthard v. Consett Iron Co. [1905] | 2 K. B. (Eng.) 869, 22 Times L. R. 25, 75 L. J. K. B. N. S. 60, 54 Week. Rep. 139, 93 L. T. N. S. 756.

The fact that a workman who, being out of work in Scotland, went to Ireland, and obtained employment there, had not contributed anything to the support of his wife for several months while he was out of work, during which time she was supported by her father, does not prevent her and a posthumous child from being dependents, where, prior to the time he was out of work, he had supported her, and he had been at work but little over a week when he was killed. Reg. v. Clarke [1906] 2 I. R. (Ir.) 135.

41 As where the wife left her husband more than twenty years before his death, and had supported herself out of her earnings. New Monckton Collieries v. Keeling [1911] A. C. (Eng.) 648, 80 L. J. K. B. N. S. 1205, 105 L. T. N. S. 337, 27 Times L. R. 551, 55 Sol. Jo. 687, 4 B. W. C. C. 332.

Where a woman deliberately, of her own choice, separated from her husband, and a daughter deliberately, of her own choice, went with the mother, and the mother had property of her own, and the husband never contributed toward the maintenance of either of them, they are not dependent upon him within the meaning of the act. Polled v. Great Northern R. Co. (1912) 5 B. W. C. C. (Eng.) 620, former appeal, 5 B. W. C. C. 115.

Where a wife had been deserted for a number of years, and subsequently lived with another man, neither she nor their children can be considered dependents. Lee v. The Bessie [1912] 1 K. B. (Eng.) 83 [1911] W. N. 222, 105 L. T. N. S. 659, 81 L. J. K. B. N. S. 114, 5 B. W. C. C. 55, 12 Asp. Mar. L. Cas. 89, [1912] W. C. Rep. 58, Ann. Cas. 1913E, 477.

42 Williams v. Ocean Coal Co. [1907] 2 K. B. (Eng.) 422, 76 L. J. K. B. N. S. 1073, 97 L. T. N. S. 150, 23 Times L. R. 584.

43 Day v. Markham (1904; C. C.) 39 L. J. (Eng.) 164, 6 W. C. C. 115.

44 A child en ventre sa mere is a "de

born after his death, and that he would marry the mother before the child was born, is admissible to show both paternity and dependency of the child.45 Such children, however, may be shown as a matter of fact not to be dependents.46 An illegitimate child of a workman cannot recover compensation for his death in excess of what he would have been obliged to give under a decree of affiliation and aliment, in the absence of any proof that the deceased had ever contributed to the child's support in excess of what he was required to by the decree.47 A woman is not entitled to compensation for the death of a man with whom she had cohabited for a period of pendent" of the man who admits that he is the father, and who had promised to marry the mother. Orrell Colliery Co. v. Schofield [1909] A. C. (Eng.) 433, 78 L. J. K. B. N. S. 677, 100 L. T. N. S. 786, 25 Times L. R. 569, 53 Sol. Jo. 518, aflirming [1908] W. N. 243, 25 Times L. R. 106, 53 Sol. Jo. 117.

In Bowhill Coal Co. v. Neish [1909] S. C. 252, 46 Scot. L. R. 250, where the mother of an illegitimate child had obtained a decree for aliment against the father, but nothing had been actually paid thereon, the court rejected the contention of the defendant that, inasmuch as no actual money of the deceased was proved to have been actually spent upon the child, the child could not be said to be dependent on him.

45 Lloyd v. Powell Duffryn Steam Coal Co. (H. L.) [1914] A. C. (Eng.) 733. 111 L. T. N. S. 388, 83 L. J. K. B. N. S. 1054, 30 Times L. R. 456, 58 Sol. Jo. 514, 7 B. W. C. C. 330, reversing [1913] 2 K. B. 130, 82 L. J. K. B. N. S. 533, 108 L. T. N. S. 201, 29 Times L. R. 291, 57 Sol. Jo. 301, [1913] W. N. 51, [1913] W. C. & Ins. Rep. 355, 6 B. W. C. C. 142.

46 An illegitimate child who at its birth had been taken over by another woman and supported by her and her husband, except for a small sum of money and a little clothing, is not a dependent upon her mother. Briggs v. Mitchell [1911] S. C. 705, 48 Scot. L. K. 606, 4 B. W. C. C. 400.

And the husband of the mother of an illegitimate son, who is not the latter's putative father, is not a "dependent,” although the son's earnings were put into

a

common fund for the support of the family. McLean v. Moss Bay Iron & Steel Co. [1909] 2 K. B. (Eng.) 521, 78 L. J. K. B. N. S. 849, 100 L. T. N. S. 871, 25 Times L. R. 633. This decision was reversed by the House of Lords, but on another point. See note, 36 supra. See the decision of the House of Lords on another phase of this case, note 36, supra. There was no appeal by the husband.

47 Gourlay v. Murray [1908] S. C. 769, 45 Scot. L. R. 577, 1 B. W. C. C. 335.

fact, the wife receives nothing at all from her husband who has left her, then she is not dependent upon him.58 A woman deserted by her husband, having no title to sue for damages or solatium for the death of her son, has no title to claim compensation under the act as a dependent upon him.59

of his family had been in the way of giving him presents of money.61 A daughter who keeps house for her father may be dependent upon him.62

3. In the Colonies.

The court of appeal of British Columbia has held that alien dependents residing abroad are not within the purview of the provincial act.63 But the House of Lords, to which an appeal was taken, upheld the right of alien dependents to recover, as they were not within the exceptions contained in the act.64 In order to recover under the British

The wife of a foreigner who came to Scotland, and during eight months' residence forwarded her the sum of £1, may be found to be a "dependent," but not wholly dependent upon her husband, where she supported herself in part by earnings as an outdoor laborer at a small wage. Baird v. Birsztan (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 438.

58 Where a wife voluntaril left her husband, and a month afterwards gave birth to a child, and subsequently, by means of her earnings as a weaver, and the assistance of the relatives with whom she lived, she supported herself and her child, never asking for and never receiving aliment from her husband, it cannot be said that either the wife or the child were either wholly or in part dependent upon the earnings of the workman at the time of his death, twelve years after the separation. Lindsay v. M'Glashen [1908] S. C. 762, 45 Scot. L. R. 559; Turners v. Whitefield (1904) 6 Sc. Sess. Cas. 5th series, 822, 41 Scot. L. R. 631, 12 Scot. L. T. 131, followed.

A woman who has been for fourteen years living apart from her husband, and was supported by an illegitimate son, is not wholly or in part dependent on the earnings of her husband, and is not entitled to compensation. Turners v. Whitefield (Scot.) supra.

59 Campbell v. Barclay, Curle & Coy (1904) 6 Sc. Sess. Cas. 5th series, 371, 41 Scot. L. R. 289, 11 Scot. L. T. 682.

60 Legget v. Burke (1902) 4 Sc. Sess. Cas. 5th series, 693, 39 Scot. L. R. 448, 9 Scot. L. T. 518.

61 Arrol v. Kelly (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 906 (son had made payments to his father which averaged 10 s. weekly; father's average weekly income was £1, 4s. 11d).

62 The daughter of a workman, who had been previously earning wages, but who after her mother's death remained at home to keep her father's house, getting from

wages, is a dependent in the sense of the act. Moynes v. Dixon (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 386. Lord M'Laren said: "If it had been meant that the right was to be limited to those who were in the position to sue an action for aliment, it would have been very easy to say so, or if it had been meant to exclude those who were earning wages for themselves, that again could have been very shortly and definitely expressed in the statute.

But the analogy of an alimentary claim is not suggested by anything in the statute,-the condition of total or partial dependence upon a man at the time of his death introduces an idea wholly foreign to the common law. I can see no other construction for this provision except that the ground of liability is whether the wages of the workman at the time of his death were in fact applied to the maintenance of the person who is making the claim." Lord Ardwell observed that "it would be establishing a very hard precedent, and a precedent that might work very badly in practice, to say that a daughter who acts as the appellant did here shall not only lose the opportunity of saving money, but shall have no claim under this act in respect of her father's death.

63 Krzus v. Crow's Nest Pass Coal Co. (1911) 16 B. C. 120, 17 West. L. Rep. (Can.) 687.

McDonald, Ch. J. and Galliher, J., considered that the scheme of the act was to shift the onus of providing for the destitute from the state to the employer; and as nonresident aliens could not become a burden on the state, it ought not to be inferred, notwithstanding the general language of the statute, that the legislature intended to impose an obligation on the employer to compensate aliens.

64 [1912] A. C. (Eng.) 590, 81 L. J. P. C. N. S. 227, [1913] W. C. & Ins. Rep. 38, 107 L. T. N. S. 77, 28 Times L. R. 488, 56 Sol. Jo. 632, 6 B. W. C. C. 270, Ann. Cas. 1912D, 859. Lord Atkinson, after observing that the sole question for decision was whether the fact that the widow was an alien, resident in Austria, prevented the plaintiff, as legal representative of deceased, from recovering compen

Columbia act parents must show that they had a reasonable expectation of pecuniary benefit from a continuance of the life of the workman.65

Whether a woman living apart from her husband is dependent upon him or not is a question of fact under the western Australian act.66

Those who are partially dependent upon the injured employee are left by the Quebec act to their remedy under the Civil Code, their right to recover continuing to be subject to the obligation to prove that the accident was attributable to an "offense, or quasi offense, of the employer." 67

XVI. Appeals in Scotland where an action is raised independently of the act (§ 14).

a. Text of $ 14.

Section 14. In Scotland, where a workman raises an action against his employer, independently of this act, in respect of any injury caused by accident arising out of and in the course of the employment, the action, if raised sation under the provincial act, since he would hold it, if recovered, for her benefit, said: "It is not insisted that the provincial statute shall operate extraterritorially. It is insisted that by its express words it imposes on the employer a liability to compensate his workmen for personal injuries by accident arising out of and in the course of the employment which he carries on, and in which they work. Where that employment is carried on in the province of British Columbia, one of the results of this intraterritorial operation of the statute may, the respondents admit, possibly be that in some cases a nonresident alien may derive a benefit under it; but their Lordships think that if the liability thus expressly imposed is to be cut down at all, or if the employer is to be relieved from it to any extent, this must be done either by some provision of the statute itself, or of the schedules attached to it, either expressed or to be clearly implied, and not by conjectures as to the policy of the act not suggested by its language.'

In Varesick v. British Columbia Copper Co. (1906) 12 B. C. 286, the judge of the county court apparently assumed that alien dependents residing abroad were entitled to compensation under the act, but compensation was denied upon the ground that it was not shown that the applicants were dependents.

in the sheriff court and concluding for damages under the employers' liability act 1880, or alternatively at common law or under the employers' liability act 1880, shall, notwithstanding anything contained in that act, not be removed under that act or otherwise to the court of session, nor shall it be appealed to that court otherwise than by appeal on a question of law; and for the purposes of such appeal the provisions of the second. schedule to this act in regard to an appeal from the decision of the sheriff on any question of law determined by him as arbitrator under this act shall apply [new].

b. Effect of this section.

Section 14 of the act provides that in Scotland, where a workman raises an action in the sheriff's court against his employer independently of the act, and concluding for damages under the employers' liability act of 1880, or alternatively at common law or under the employers' liability act of 1880, the action shall not be remitted to the court of sessions except upon an appeal on a to Canada. Held, that the parents were not entitled to maintain the action as "dependents," inasmuch as they had failed to show that they had any reasonable expectation of pecuniary benefit" from the deceased.

To the same effect, Varesick v. British Columbia Copper Co. (B. C.) supra.

66 A wife who had been separated from her husband for sixteen years, until the time when she spent a few days in the same house with him, but not as his wife, and who for a considerable portion of the period of separation had lived in adultery with another man, is not a dependent upon the husband. Allan v. Oroya Brownhill Co. (1910) 12 West. Australian L. R. 1.

A woman living apart from her husband may be found to be in fact dependent upon the earnings of a deceased son who, with several other sons, had lived with her and contributed to her support, although her husband lives in the same town, and she has never taken any steps to procure maintenance from him. Kilgariff v. Associated Gold Mines (1910) 12 West. Australian L. R. 73.