of this condescendence the very necessity of which came from the feeble- Dec. 15, 1911. ness of the initial writ. It is a very special case, and I do not think it will M'Laughlin v. occur again, and I do not wonder for one moment at the Auditor doing as Wemyss Coal Co., Limited. he did. But I do not think that it would be just to allow that item. Well, the other objection, which is of a more general character, is this. Ld. President. The actual interlocutor runs thus:-"Find the appellant entitled to the expenses of the appeal." Now, the Auditor, having had his attention. called to a certain case of M'Govern v. Cooper & Co.,1 as commented on in a case of the London and Edinburgh Shipping Co. v. Brown,2 felt himself bound to disallow the expenses of getting a stated case prepared. There are certain necessary expenses in connection with that. Notably there is the necessity of paying £1, 10s. under the table of fees to the Sheriff-clerk when he hands the appellant the stated case. The history of the matter seems to be that in M'Govern's case the respondent, who had been found entitled to expenses, had charged in his account of expenses for a series of attendances at the Sheriff-clerk's office, which represented a sort of anxiety on his part to see that the stated case was being properly drawn, and the Court held, and, I think, quite rightly held, that it was never intended that the respondent's agent should be continually running to the Sheriffclerk's office-I think there were thirteen items in that case-and charge that against the opposite party. And your Lordships will notice that in that case he was not there to get the special case. That was the business, naturally, of the appellant. Accordingly, the Court disallowed the expenses. The question came up again, and was discussed in the case of London and Edinburgh Shipping Company v. Brown. Certain expenses in connection with the adjustment of the case were objected to, and their Lordships' attention having been drawn to M'Govern's case,1 their view was that the expenses should be allowed to a modified extent, and they drew a distinction between the interlocutor in the case before them, which ran "the expenses of the stated case," and the interlocutor in the case of M'Govern,1 which ran "the expenses of the appeal," and upon that distinction they discriminated between the cases. If I may say so with respect, I think that was a well-meant intention of saving the decision of the other Division, and that really there is no distinction between the two forms of interlocutor. I cannot imagine how there could be, because after all the only way of appeal is by stated case, and whether you call it " of the appeal" or expenses of the stated case or expenses of the stated case on appeal," all these expressions seem to me to come to the same thing. Nay more, I cannot imagine a case in which it would be proper to give the appellant the expenses of the appeal (necessarily, of course, on the hypothesis that he had been successful), and yet to disallow the actual outlay which he had to make, in the shape of a fee to the Sheriff-clerk, in order to get the case stated on which he was successful. I cannot imagine a set of circumstances in which that could be right. Of course if I thought I was going against the judgment of the Second Division I would not have pronounced this judgment without consulting them; but I am perfectly certain that I am not going against 66 1 4 F. 249. 2 7 F. 488. expenses Dec. 15, 1911. the real meaning of the Second Division, because in the subsequent case of M'Laughlin v. Dempster v. Baird & Company, Limited, Lord Stormonth-Darling, in Wemyss Coal delivering the judgment of the Court, says,-" We shall adopt the practice Co., Limited. in Brown's case 2 to the extent of modifying the fee to be allowed to the Ld. President. appellant at three guineas, which includes the £1 paid to the Sheriff-clerk.” That is the rule which I propose your Lordships should follow here, and I think it is much the best plan to have a modified fee, and that, I understand, is actually the practice of the Auditor. Therefore, I think we should follow the practice in Brown's case and sustain the objections so far, and instead of giving an unfixed amount give a fee of three guineas, which will include the £1, 10s. paid to the Sheriff-clerk. I have consulted the Auditor, and in cases in the future in respect of the increased fees under the 1907 Act, the fee to be allowed will be three guineas and a half. That I take to be the proper practice when a particular interlocutor bears to be, as I say, for the "expenses of the stated case," or the expenses of the appeal," or the "expenses of the stated case on appeal.” LORD KINNEAR and LORD MACKENZIE concurred. " THE COURT pronounced the following interlocutor:-"Having to the Auditor's report on the appellant's account of expenses ERSKINE DODS & RHIND, S.S.C.-W. & J. BURNESS, W.S.-Agents. No. 43. M'Lean v. ANGUS M'LEAN, Appellant.-Crabb Watt, K.C.—J. A. Christie. Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), Second Schedule Sheriff of Where an agreement in writing has been entered into between an employer and a workman with regard to compensation, it is the duty of the Sheriff (if objection is taken) to refuse to record a memorandum which is not in the precise terms of the written agreement. It is not part of his duty to construe the written agreement and then to determine whether the memorandum gives effect to it as so construed. 1ST DIVISION. IN an application in the Sheriff Court of Lanarkshire at Glasgow for the recording of a memorandum of agreement under paragraph (9) of the Second Schedule to the Workmen's Compensation Act, 1906, the Sheriff-substitute (Fyfe) refused to record it, and at the request of the workman, stated a case for appeal. 1 1908 S. C. 722, at p. 731. 27 F. 488.. The case set forth : "The following facts were admitted: Dec. 16, 1911. M'Lean v. "1. The appellant, whilst in the respondents' employment as a Allan Line seaman, on board their s.s.' Hibernian,' on 7th March 1911, sustained Steamship injury by accident arising out of and in the course of his employment, Co., Limited. and he was thereby totally incapacitated from following his occupation. "2. The amount of compensation payable to appellant under the Workmen's Compensation Act was agreed upon at 13s. 9d. per week, and that is still being paid. "3. On 17th August the appellant signed a stamped document in the following terms:-First Payment. Received this 17th day of August 1911 from the Shipping Federation, Limited, on behalf of the owners of the s.s. "Hibernian," the sum of Two pounds one shilling and threepence, being weekly compensation at the rate of 13s. 9d. per week from 25/7/11 to 15/8/11 inclusive, under the Workmen's Compensation Act, 1906, under which Act I elect to claim for personal injury, by accident, sustained by me on or about the 7th day of March 1911. This weekly payment is to be continued during my total disablement resulting from the accident, in accordance with the provisions of the above-mentioned Act; the amount of any payment due during partial disablement to be settled hereafter. (Signed) ANGUS M'LEAN, Seaman, 110 Houston Street, Glasgow. (Witness) J. A. Ditchburn. Stamp sixpence.' “4. On 21st August 1911 the appellant lodged with the Sheriffclerk a memorandum to be recorded in terms of the Workmen's Compensation Act, in the following terms: The claimant claimed compensation from the respondents in respect of personal injuries sustained by him on 7th March 1911, while in the employment of the respondents, and on board s.s. "Hibernian," at Greenock, the claimant having sustained dislocation of the right shoulder, and having been totally incapacitated from following his occupation from said date in consequence. The question in dispute, which was as to the amount of compensation payable to the claimant, was determined by agreement. The agreement was made on the sixteenth day of August 1911, and was as follows, viz. :-That the respondents should pay compensation to the claimant from the date of the accident, at the rate of thirteen shillings and ninepence sterling per week, to continue during the claimant's incapacity for work, or until such time as the same shall be ended, diminished, or redeemed, in accordance with the provisions of the said Act.' " 5. The Sheriff-clerk, in terms of Section XI. (1) of the Act of Sederunt of 26th June 1907, on said 21st August 1911 sent a copy of said memorandum of agreement in a registered letter to the respondents, containing a request that he might be informed on or before 28th August 1911 whether the memorandum and agreement set forth therein were genuine or were objected to. On 23rd August 1911, The Shipping Federation, Limited, on behalf of the respondents, sent to the said Sheriff-clerk a letter objecting to said memorandum being recorded, on the ground that it did not accurately set forth the agreement made with the appellant. The Sheriff-clerk thereupon intimated to the appellant that the recording of the memorandum had been objected to, and that the same would not be recorded without a special warrant from the Sheriff. In terms of Section XII. of said Act of Sederunt, the memorandum thereupon fell to be dealt with as if it were an application to the Sheriff for settlement by arbitration R M'Lean v. Dec. 16, 1911. of the questions raised by the objection to the recording of the memorandum. On 11th October 1911, after having heard parties' procurators, I found that on the 17th August 1911, the document above referred to had been signed by the appellant, Angus M'Lean, and that that document constituted a formal agreement between the appellant and the respondents, expressed in terms different to those set forth in the memorandum sought to be recorded. I therefore found that said application to record a memorandum of agreement was unnecessary and incompetent, and I dismissed the application, and found no expenses due to or by either party." Co., Limited. The question of law for the opinion of the Court was:-"Did the fact that on 17th August 1911 the appellant had signed the said document, render his application to record an alleged agreement of 16th August in different terms incompetent?" The case was heard before the First Division (without Lord Johnston) on 16th December 1911. Argued for the appellant ;-The document signed on 17th August did not render incompetent the recording of this memorandum because (except for an error, which the appellant was prepared to correct, as to the date from which compensation was payable) the only difference between the two documents was a mere difference of expression. The closing sentence of the memorandum (which was the only part objected to) really set forth the correct interpretation of the agreement. Further, if the memorandum was recorded in its present form the respondents would suffer no prejudice, for if total incapacity ceased the remedy of suspension was not open to them,-their only remedy was an application for review, and in such an application it would make no difference whether the memorandum was in its present form or in the precise terms of the agreement. If, however, the Court were to hold that the recording of the memorandum in its present form was incompetent, the appellant desired to record a memorandum in the actual terms of the agreement. Argued for the respondents;-The agreement between the parties here having been reduced to writing, the Sheriff was right in refusing to record a memorandum which differed in its terms from the written agreement.2 The difference here was material for (apart from the error in date) the memorandum bore that compensation was agreed to be paid till it was "ended, diminished, or redeemed," under the Act, whereas the written agreement was only for payment during "total disablement." The effect of recording the memorandum in its present terms would be that, if total disablement ceased, the respondents would have to continue paying until they had got an order in a process of review ending or diminishing the compensation, and even though that order dated back to the time of presenting the application, it was obvious that the sums paid meanwhile would be unrecoverable. Whereas, if the memorandum were recorded in the actual terms of the agreement, the respondents, as soon as total disablement ceased, could stop paying, and if charged for payment, could suspend the charge.3 1 Lochgelly Iron and Coal Co. v. Sinclair, 1909 S. C. 922; Archibald Finnie & Son v. Fulton, 1909 S. C. 938. 2 Shore v. S.S. Hyrcania, (1911) 4 Butterworth, 207; Lunt v. Sutton Heath and Lea Green Collieries, (1911) 4 Butterworth, 219. 3 Wilsons and Clyde Coal Co. v. Cairnduff, 1911 S. C. 647. LORD PRESIDENT.-This stated case conceals in an extraordinary manner Dec. 16, 1911. the real point which was argued before your Lordships, but as the matter is M'Lean v. now clearly before the Court, I do not think that it is necessary to send the Allan Line case back. The matter arises in this way. The appellant, who is a seaman, met with an accident on board the ship "Hibernian," belonging to the respondents. He does not seem to have been paid compensation at first because, I suppose, he was on board the ship and got his wages and nothing more was necessary. But on 17th August 1911-that is to say, about five months after the accident he signed an agreement. [His Lordship then recited the terms of the agreement and the terms of the proposed memorandum, and continued] -Now, that memorandum the Sheriff refused to record, and the present appeal is as to whether he was bound to record it. In the discussion before your Lordships the appellant admitted that the words in the memorandum "from the date of the accident" were a slip, and he is quite willing to alter them by putting in "from 25th July 1911"; and if that were the only matter the respondents would not, as I understand, object. But the real point of discussion between them lies in the words that are put in the agreement as to payment to be continued during total disablement. I ought to say, first of all, that although the so-called agreement is a document unilateral in its terms, it is not disputed by the respondents that it constitutes an agreement, that is to say that it was accepted by them as such. Now, the real dispute is upon the words that occur after the provision as to payment during total disablement, namely, the words "the amount of any payment due during partial disablement to be settled hereafter." In the document as signed the words are as I have read them, whereas in the memorandum as proposed to be recorded those words are replaced by the words "or until such time as the same shall be ended, diminished, or redeemed, in accordance with the provisions of the said Act." The appellant maintains that those words in the memorandum are simply a more accurate and proper way of expressing what the words in the written agreement bore. The respondents, on the other hand, say, No; and in particular they maintain that it will make an important practical difference to them, because they say that the result of recording the memorandum as proposed will be that if the seaman partially recovers, they will be bound to pay if charged until they can get the payment reviewed in a process of review, and that, albeit that eventually decree in that process of review will draw back to the term of presenting the petition, yet nevertheless they may find themselves in this unpleasant position, that during the time the case has taken to decide they have had to pay the full sum, and that sum they will never get back; whereas if the agreement was recorded in the precise terms in which it was written they could not be charged to pay during the period. after they had alleged that total incapacity had ceased-or rather, to put it more accurately, that if a charge were presented against them they would be able to suspend it-and therefore would not be in the position of having to pay money that they eventually would not be able to get back. Now, I do not think, although we have had a discussion on the question, that we need decide at present whether the one set of words is exactly the same as the other or is not. The only thing we can decide to-day is, What Steamship |