unnecessary in so far as it craves authority to

complete title.

BILL CHAMBER.

Ferrier

not require this authority to enable them to make up titles. They have power to do so, and must act on their own responsibility. I do not say what might be done in a case of great Counsel for Petitioner, Ingram; Agents, (Ferrier's necessity, but the present application cannot J. K. & W. P. Lindsay, W.S. be entertained." There

BILL CHAMBER.

J. A. L.

are a number of cases in the books in which authority to complete title (usually coupled with a crave for special powers owers of sale) has been granted in favour of factors loco tutoris. But these afford, as the Lord Justice-Clerk points out, no authority for the present petition; and further, in some of these cases the power craved was for power to complete title in the name of the factor. Reference may be made, inter alia, to 30. Macpherson (Melville's Curator

Baird (1741, M. 16346), Kirkland (10 D. 1232), Crighton (19 D. 429). Indeed, even in the case of judicial factors, the Court appeared at one time to have taken a strict view, and to have granted such authority only in cases of urgency. (See Boyd, 17 D. 1115; Wilson, 2 Stuart 559.) It is true that in the case of Waddell (13 D. 739) such authority was granted in favour of a tutorat-law, but this crave was coupled with a crave for other powers, which, however, the Court refused, and the circumstances may have been special. I was also referred to the case of Forbes (1922, S.L.T. 294), where also a similar power was granted by the Court. In that case the crave was coupled with a crave for a power of sale which the Court declined to grant as unnecessary. I was also referred to the dictum of Lord Curriehill in the case of Maconochie (19 D. 366 at p. 372), but it appears to me to be clear that Lord Curriehill is, at the passage referred to, speaking of the guardian of an incapax, as, for example, a curator bonis or other judicial officer. Notwithstanding these isolated cases there is, in my opinion, no doubt that at common law tutors and administratorsat-law have full power to complete title to heritage in the name of their wards without recourse to the authority of the Court. And the need for such recourse is all the less necessary seeing that tutors are now clothed with the full powers conferred upon trustees by the Trusts Acts.

As the Lord Justice-Clerk said in the case of Graham, there may be exceptional cases in which the tutor may be entitled to come to the Court for special power to complete title, but such cases must be rare, at least since the law has limited the liability of heirs taking up succession to the value of the estate. The circumstances disclosed in the present case present, in my opinion, no exceptional features so as to call for the special intervention of the Court. For aught that appears, the ward's estate might be realised if an ordinary test of the market were made.

I shall accordingly dismiss the petition as

(Lord Murray.)

19th December 1923.

Bonis)-Petitioner.

Judicial factor-Curator bonis to incapax-Petition by
curator bonis for authority to complete a title to
heritage by special service in the person of his ward-
Petition refused as unnecessary.

John Lumsden Macpherson, curator bonis
to William Melville, having obtained by a
note to the Lord Ordinary on the Bills on 2nd
August 1923 authority to collate the heritable
with the moveable estate of Thomas Melville,
junior, brother of William Melville, who was
the heir-at-law of Thomas Melville, on 10th
November 1923 presented a Note to the Lord
Ordinary on the Bills craving the Court to
grant special power to complete a title by
special service in the person of the ward, William
Melville, to certain parts of the heritage with
a view to conveying those parts to the persons
entitled thereto.

The Lord Ordinary on the Bills, Lord Murray, refused the petition.

a

Lord Murray. In this note the petitioner, who is the curator bonis to an incapax, craves special power from the Court to complete a title by special service in the person of the ward to certain heritage. The petitioner, under previous note, received special power to enable him to collate the heritage to which his ward had succeeded, and the present note is designed as a step towards carrying out the transaction by completing the ward's title, and thereafter conveying a share of the heritable estate to those entitled thereto.

I may refer to a note appended to my interlocutor of even date in petition Ferrier (supra, p. 118), which relates to authority to complete title by special service in the person of the tutor. The position in the present case is no doubt different; for while the Court in general have declined to authorise a tutor to complete title, there are a number of cases in the books in which such authority has been given by the Court to factors, curators, and others judicially appointed to administer the estates of wards,

Tutrix-atLaw)Petr.

December 19, 1923.

Counsel for Petitioner, D. Jamieson; Agents, and respondent avers that the injury to him was at Dove, Lockhart & Smart, S.S.C.

h

K

19 Alva Street, Edinburgh, 14th June 1922. Dear Sir, Thomas King v. Edinburgh Collieries Co. Ltd. We have been consulted by Thomas King, 75 Newbigging, Musselburgh, with regard to his claim for compensation in respect of an accident at Carberry Colliery on 15th May 1922. We understand that you have received full particulars regarding the accident, so that it is unnecessary that we should go into many details in the course of this letter. On the above date, King, while employed with the above company, was incapacitated owing to gas poisoning, and he has since been unfit for work owing to the accident in question. He claims compensation as for total incapacity since the date of the accident. We shall be glad, therefore, to receive in course a remittance for the compensation due at the rate of 35s. per week. As there has been considerable delay in settling this claim, we have been instructed to take action at once failing an immediate settlement.Yours faithfully (Sgd.) G. M. Wood & Robertson.The Manager, The Scottish Mine Owners' Defence and Mutual Insurance Assn. Ltd., 135 Buchanan

Sheriff-Substitute Orr, K.C.- This is an action of damages at common law, and alternatively under the Employers' Liability Act. The action is founded on averments of fault against defenders in respect of failure in their statutory duty to provide adequate ventilation in the mine where pursuer worked. It is also said defenders failed in their duty to have the section of the mine duly inspected by competent persons, as provided for by the Coal Mines Act, 1911. Alternatively it is averred that certain servants of defenders entrusted with the duty of superintendence caused or materially contributed to the injuries sustained by pursuer by their fault or negligence.

There is a preliminary defence founded on section 1 (2) (b) of the Workmen's Compensation Act, 1906. It is said the pursuer has exercised the option given him in that section by making a claim for compensation under the Workmen's Compensation Act, and that he is thereby barred from insisting in the present

Street, Glasgow." Quoad ultra the defenders and
appellants deny the averments of the pursuer and
respondent above referred to, and aver that the
pursuer and respondent definitely elected to claim
compensation from the defenders and appellants
under the Workmen's Compensation Act, 1906,
and in point of fact made said claim against them in
said letter of 14th June 1922, his agents intimating
that pursuer and respondent "claims compensation
as for total incapacity since the date of the accident,"
and adding, "We shall be glad, therefore, to receive
action. The claim is contained in a letter dated
in course a remittance for the compensation due at
14th June 1922, in which pursuer's agents wrote:
the rate of 35s. per week." They further explain and
"He claims compensation as for total incapacity
aver that a question having arisen as to the liability since the date of the accident. We shall be glad,
of the defenders and appellants to pay compensation therefore, to receive in course a remittance for the
under said Act (the pursuer and respondent insisting compensation due at the rate of 35s. per week."
on 22nd July 1922 upon payment of "the compensa- The accident happened on 15th May 1922. The
tion due to date," and the defenders and appellants defenders repudiated liability. On 27th July they
repudiating liability), they applied for arbitration wrote to that effect and stated that they were apply-
in Edinburgh Sheriff Court, which arbitration is still

pending.

The first plea in law stated for the defenders and appellants is in the following terms: "Pursuer

having prior to service of the petition claimed com

pensation from defenders under the Workmen's Compensation Act, 1906, in respect of said injury, which claim is presently the subject of arbitration proceedings in the Edinburgh Sheriff Court, the present action is barred by the terms of section 1, subsection (2) (b), of said Act and should be dismissed, with expenses."

The record in the action was closed on 2nd February 1923, and parties were subsequently heard in the Debate Roll. In the course of the hearing it was admitted that the said application for arbitration was presented on 27th July 1922, that answers thereto for the present pursuer and respondent were lodged on 13th October 1922, and that since that date no further step in said arbitration proceedings had been taken by either party. It was also admitted that the initial writ in the present action was pre

sented on 14th November 1922.

ing for arbitration. On 28th July pursuer's agents
replied that to prevent any misapprehension they
thought it right to state that their client did not

restrict his claim to one under the Workmen's

Compensation Act, 1906; that he had a claim at
common law, or alternatively under the Employers'
Liability Act, 1880, and they ask defenders to

hold that letter as intimation of a claim on both
grounds.

The question that arises is therefore whether the
intimation of claim in the letter of 14th June is a
good and effectual exercise of pursuer's option so as
to bar the present action.

I take it as intimation of a claim under the Workmen's Compensation Act, 1906, although that Act is not mentioned by name, but I am of opinion that it does not bar the pursuer from adopting the course he is now taking.

The authority relied on by defenders is Burton v. Chapel Coal Co. Ltd. (1909 S.Č. 430), in which previous cases both in Scotland and England were discussed

and explained. I accept as correctly stating the

meaning of section 1 (2) (b) the words of Lord Low:
"The workman is expressly put to his option between

The Questions of Law for the opinion of the two courses, and the essence of an option between
two courses is that whichever is adopted the other

Court were :

1ST DIV. is altogether rejected." His Lordship puts it otherwise: "The workman must elect either to claim King v.

1923.

Edinburgh compensation under the Act or to sue for damages Collieries independently of the Act, and cannot adopt both Co. Ltd. courses either concurrently or consecutively." When has a workman exercised his option? In Burton's December 21, case he was held to have done that, and therefore that he was not entitled thereafter to bring an action of damages. But what he had done was first to intimate a claim under the Act, he then brought an arbitration and followed out the arbitration to a final decision, when the arbiter refused him compensation on the ground that the accident was caused by his own serious and wilful misconduct. It was held by all the learned judges that that amounted to an exercise of his option. Lord M'Laren says: "In the present case the claim under the Compensation Act was tried and decided against the claimant on its merits, and he is now attempting to follow out, by action at law, the alternative claim which is founded on the alleged fault of the employer. This proceeding, as I think, is contrary to the letter and the spirit of the statutory provision against double liability." The Lord Justice-Clerk and Lord Kinnear adopt as expressing the true meaning of the statute the language of the Master of the Rolls in Cribb v. Kynoch ([1908] 2 K.B. 551): “I think the true meaning of the Act is that a workman cannot proceed to trial under the Act and fail, and then proceed by common law action, and also cannot proceed by common law action, and having failed in that action, then proceed under the Act."

The case of Burton therefore is not authority against the present pursuer, who went no further than intimating a claim. Lord Low expressly reserves his opinion on a case like the present. “What, however, would be the result if a workman who had a title to claim compensation under the Act made such a claim but withdrew it before final judgment, is a question upon which I would desire to reserve my opinion." So also Lord Pearson. Intimating a claim may not necessarily be the same thing as making, in Lord Pearson's language, a final election," or, as

66

Lord Kinnear puts it, "finally and conclusively

exercising his option in one way." In M'Donald v.
James Dunlop & Co. (1900) Ltd. (7 F. 533) Lord
M'Laren said: But then, while an election exists

66

The second preliminary plea was not insisted in.
I shall repel the two preliminary pleas.

The Workmen's Compensation Act, 1906 (6) Edw. VII. cap. 58), enacts:

Section 1. (1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act. (2) Provided that

(b) When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid:

The case was heard before the First Division on 13th December 1923.

Argued for the Defenders: The words "claim compensation" ought to be construed as including the notice of accident; and in any event the letter of 14th June 1922 from the

workman's agents was clearly a claim of compensation under the Workmen's Compensation Act, 1906 (Powell v. Main Colliery Co., [1900] A.C. 366, per Earl of Halsbury L.C. at p. 370). If it turned out that the work

in that case, it does not follow that it is an irrevoc-man had never had a claim under the Act, able election, and in the absence of any provision to and if that was held in proceedings under that effect, and keeping in view the explanatory the Act, he could not perhaps be held to

proviso that the employer shall not be liable to pay
under both claims, I come to the conclusion that a
workman may, if he pleases, abandon the claim first
made, and fall back on the alternative claim." That

have exercised his statutory option. But in the present case there was actually an arbitration pending to decide that very question, case arose under the Compensation Act of 1897, and the mere fact that the employers had which contained a similar provision to that of the disputed the workman's claim was in no way present Act. I find no case where the mere writing inconsistent with the possibility of his having of a letter such as the letter of 14th June was held a good claim. By asserting a claim he must to be a "final" and "irrevocable" election by a be held, for the present at least, if not finally, workman of the one course open to him to the ex- to have exercised his option. The parties had clusion of the other. That is all the workman did joined issue under the Act, although it was true here. His claim was at once repudiated, and I that little or nothing had been done in the cannot think that defenders have succeeded in shutarbitration. The purpose of the subsection ting him off from his alternative by intimating in the same letter in which they repudiated the claim that was not solely to prevent double payment they were applying for arbitration. Pursuer's alter- by the employer: it put the workman to a native intimation of a claim independently of the true election between the two remedies open Act was given without delay. to him. It was impossible that both the

r

decern."

December 21, 1998.

processes at present pending should go on made by his solicitors on his behalf on 14th 1st Div. concurrently. If the common law action failed, June 1922 as a condition of proceeding with King v. there would be two judges qualified to award the present action, under reservation always of Edinburgh compensation - the Sheriff-Substitute under the respondent's right under section 1 (4) of Collieries section 1 (4) of the Act, and the Sheriff-Sub- the Workmen's Compensation Act, 1906, and Co. Ltd. stitute as arbitrator in the pending arbitration. One of these judges would have to take cognisance of the expenses in the common law action; the other would have no concern with them (Scarf v. Jardine, (1882) 7 A.C. 345, per Lord Blackburn at p. 360; Burton v. Chapel Coal Co. Ltd., 1909 S.C. 430, per Lord Kinnear at p. 436 and Lord Low at pp. 438 and 439; M'Donald v. James Dunlop & Co. (1900) Ltd., 1905, 7 F. 533; Harrison v. Wythemoor Colliery Co., [1922] 2 K.B. 674, per Lord Sterndale M.R. at pp. 685 to 687 and Scrutton L.J. at p. 698; Cribb v. Kynoch Ltd. (No. 2), [1908] 2 K.B. 551, per Buckley L.J. at p. 560; Taylor v. Hamstead Colliery Co., [1904] 1 Κ.Β. 838). [The Lord President referred to Westville Shipping Co. v. Abram Steamship Co., 1922 S.C. 571, per Lord President Clyde at p. 580, and Perry v. Clements, (1901) 17 T.L.R. 525.]

was

Argued for the Pursuer: The notice of injury and claim of compensation by this workman did not constitute a claim in the sense of section 1 (2) (6) of the Act. A mere letter not enough. The claim must be an effective claim, either prosecuted to an award or at least to the point of some genuine litiscontestation. Here the employers had repudiated liability to pay compensation and themselves applied for arbitration. The pursuer had not initiated the arbitration proceedings. Actings hinc inde of that sort could not be held to bar the workman from his common law remedy. If they were, it would mean that if an injured workman met his employer and said to him, "I have been injured and claim compensation under the Act from you," and the employer replied, "You have no claim," the workman thereafter would be barred from bringing an action at common law; which was absurd (Stewart v. Perth General Station Committee, 1923 S.C. 356, per Lord President Clyde at p. 361, and Lord Sands at p. 364).

Avizandum, 13th December 1923.

On 21st December 1923 the Court pronounced this interlocutor :

The Lord President (Clyde). - The workman's action is founded alternatively on common law or on the Employers' Liability Act, 1880, and the present appeal is accordingly presented under section 14 of the Workmen's Compensation Act, 1906. The questions of law submitted for answer arise on the relevancy of certain averments of the pursuer and defenders regarding a claim for compensation under the Act of 1906 made by the workman prior to the raising of the action. The employers contend that by making a claim the workman exercised the option given him by section 1 (2) (b), and thus became barred from taking proceedings independently of the Act of 1906.

It was laid down by the House of Lords in the case of Powell v. Main Colliery Co. ([1900] A.С. 366) that the workman's claim for compensation, which is the first step in, and a condition precedent of any further, proceedings for the recovery under the Act of compensation for an injury (section 2 (1)), need not take the form of an actual application for arbitration, but may be satisfied by a simple notice of a claim for compensation given to the employer. With regard to the "proceedings" under the Act, of which the claim is the preliminary step, it was pointed out in Powell's case that the proceedings referred to are not primarily judicial in character, though arbitration may be required to decide differences which arise in the course of themsee section 1 (3). In the present case the workman's claim took the form of a perfectly clear and unambiguous letter from his solicitors claiming the statutory compensation of so much a week, and intimating immediate action to enforce it if not immediately settled. In the proceedings thus instituted, which included a medical examination of the pursuer, a question arose in consequence of the denial by the employers of their liability to pay compensation to the workman, and the employers thereupon applied for the settlement of that question by arbitration under the statutory schedules. This arbitration is still pending, and the workman has not withdrawn the claim, which must accordingly be settled in it. It is necessary to keep in mind the imperative character of the provisions of section 1 (3).

".... Find, with reference to the Questions of Law in the case that it was premature at this stage to repel the first plea in law for the appellants, therefore recal the interlocutor of the Sheriff-Substitute of 10th July 1923 and remit to him to sist the action for such period as he may think reasonable to enable the respondent to decide and to intimate to the Court his decision as to withdrawing the claim The Sheriff - Substitute repelled this plea

To the action of damages which the workman subsequently raised against his employers, the latter pled that the action should be dismissed in virtue of the provisions of section 1 (2) (b).