The defenders deny the pursuer's statement in the note to the effect that she did not authorise the acceptance of the defenders' tender, as also her averments that the letter written by her solicitors to the defenders' solicitors does not constitute an acceptance of the defenders' tender. The tender was considered at a consultation with counsel in the Parliament House on 23rd January 1919 at which the pursuer was present. No definite decision was then come to, but later on the same day at a meeting with her then agents Messrs Rainy & Cameron, W.S., the pursuer decided to accept the tender and authorised her agents to intimate her acceptance to the defenders' agents. The pursuer's letter of 24th January 1919 was not received by her then agents until after the tender had been accepted as authorised by her.

The case was heard before the First Division on 27th and 28th November 1919.

Argued for the Defenders: The defenders were entitled to an opportunity of proving their averment that the settlement of the action was authorised by the pursuer The defenders had no duty or interest to apportion the amount of their tender amongst the pursuer and her children. Even if they had such an interest, the apportionment was a matter subsequent to the settlement of the action for a slump payment, and the absence of an apportionment from the terms of settlement could not vitiate the settlement. Further, the defenders were en titled to assume that the pursuer would distribute the damages pro rata according to the conclusion of the summons. Settlements were always favoured by the Courts. The following authorities were referred to: Jaffray v. Simpson, 1835, 13 S. 1122; Dumbreck v. Stevenson, 1861, 4 Macq. 86; Love v. Marshall, 1872, 10 M. 795; Jack v. North British Railway Co., 1886, 14 R. 263; Murray's Trs. v. Bloxsom's Trs., 1887, 15 R. 233; Dewar v. Ainslie, 1892, 20 R. 203; Gow v. Henry, 1899, 2 F. 48; Anderson v. Dick, 1901, 4 F. 68.

Argued for the Pursuer: There was no final and binding settlement. Even on the assumption that the proposed settlement was competent, it was not complete. It remained to apportion the damages and frame a joint minute embodying

that apportionment. If parties came to terms and agreed that those terms should be put in writing, there was at that stage, before the writing, no final and binding settlement. A group of claims by a pursuer acting in more than one capacity could not be settled by a slump sum. Just as the claims must be separately made in the summons, so they must be separately discharged in a settlement of the action. If a writing, like the letter of the pursuer's agents here, was susceptible of two constructions, one of which led to a result objectionable in law, and the other did not, the Court would prefer the construction which led to an unobjectionable result. Here the letter ought not to be construed as a final acceptance of the tender, because the pursuer could not competently settle the action for a slump sum. The following authorities were cited: M'Phail v. Caledonian Railway Co., 1903, 5 F. 306; Van Laun & Co. v. Neilson Reid & Co., 1904, 6 F. 644 per the Lord President (Kinross) at p. 650, and Lord Kinnear at p. 652; Gray v. Caledonian Railway Co., 1912 S.C. 339; Gordon's Exrs. v. Gordon, 1918, I SL.T. 407; Winn v. Bull, 1877, 7 Ch. D. 29; Glegg on Reparation, p. 82.

On 28th November 1919 the Court refused the prayer of the second note for the defenders.

there was no concluded agreement to settle this The Lord President. I am of opinion that action, because there remained over for consideration the question of allocation or apportionment of the sum tendered.

On the 20th January 1919 the defender tendered a sum of £150 in full of the conclusions of this summons; and, when we turn to the summons, we find that it concludes for payment of a sum to the pursuer as an individual and for payment to her as tutrix of her five pupil children of five separate and distinct sums, one payable t each. That was, I am satisfied, the correct form which the conclusions of the summons in such a case as this ought to take, for, as Lord Kinnear observed in the case of Gray v. Caledonian Railway Company (1912 S.C. 339), the pursuer in such an action as this "cannot be allowed to sue for one lump sum in respect of six separate injuries to six different people. The question of the injury done to each child is a separate and distinct question from the injury done to the other children. . . . . It is clear enough that each child has a separate case for separate injury done to itself; and the fact that the father,"-the mother as here-"as administrator-in-law, is entitled to recover the damages for each of his children does not make the six children into one pursuer."

Accordingly, there was H very important question to be settled, namely, how the £150 was to be apportioned between the pursuer herself and the pursuer as tutrix for each of the five children. It may possibly be that the

defender had no duty to see to the apportionment of the sum; but the defender certainly had an interest and a right to see to the apportionment of that sum, for, until it was apportioned, there was and could be no settlement of this action.

In so saying I am not to be held as gainsaying the doctrine that an action can be effectually settled although the parties may be at issue as to the meaning of the terms of the settlement. The parties here are not at issue as to the meaning of the terms of the settlement, for they have not fixed one of the terms or even so much as considered it. Nor am I to be held as contradicting the view that the mother of the pupil children here could grant a valid discharge of the sums paid to the pupil children, nor that failure to execute a joint minute, although. as here, a joint minute was in contemplation, would affect the settlement.

In the present instance, the joint minute would no doubt have contained the apportionment, and it had, therefore, a very important function to perform, and left a space of time in which either party might resile from the bargain. In holding that there was only an interim and not a concluded agreement settling this action, I think we are not disregarding or going contrary to any of the authorities cited to us for the reasons I have given.

Lord Mackenzie.-I concur in thinking that this case has not been settled and that, there fore, the action must be allowed to proceed. Whatever the pursuer may have intended upon the state of facts as represented by the defenders in the case, I think that, if it is attempted to be argued that what she did was a settlement, then what she did was ultra vires, because she could not settle this case without finally determining in the agreement to settle the answer to be returned to six separate questions: (1) how much was to be paid to her in name of her claim for £750; how much was to be paid to her daughter Agnes in name of her claim for £90; how much to William for his claim for £105; how much to Mary for her claim for £150; how much to Charles for his claim for £200, and how much to Francis for his claim for £250.

Now, all those questions are left unanswered; and, accordingly, it is of no avail for the defenders to have recourse to those cases in which, undoubtedly, there was an agreement which completely settled the case, although the terms of the settlement might require to be cleared up in a subsequent action. In the present case, I am unable to see how, there being a division of interest between the position of the mother in her individual capacity and as tutrix and administratrix for her pupil children, she could settle without the intervention of some third party, namely, an independent curator ad litem to protect the interests of the pupils, nor how

she could settle the question of apportionment 1ST DIV. with a lump sum.

Murphy

1919.

That all goes, I think, to shew that what was v. Smith. effected by the acceptance of the tender of £150 November 28, and expenses in full of the conclusions of the summons, was not sufficient to settle the case.

Lord Skerrington.- I have always regretted that Lord Young's view (Gow v. Henry, 2 F. 48 at p. 52) did not prevail, to the effect that, when an action is in Court, it should, in the ordinary case, be settled only by a joint minute to which the authority of the Court has been interponed. I must assume, however, in deference to the authorities, that an extra-judicial settlement of an action is valid, provided there has been consensus in idem for the purpose of bringing the litigation to an end.

Ön principle, it seems to me too clear for argument that there was no effectual consent on the part of the pursuer to settle for a slump sum of £150 her individual claim and the separate claims which she put forward as guardian of her five children. No authority was quoted in support of the view that a person in a fiduciary capacity can compromise for a slump sum his individual claim and those of various beneficiaries whom he represents.

I apply to the letter from the solicitors for the pursuer, dated 24th January 1919, the ordinary rule of construction to the effect that, when a writing is susceptible of two meanings, one of which will lead to a legal result and the other of which will lead to an illegality, that construction ought to be preferred which the law will countenance and to which it will give effect. The letter requests that there should be sent a draft of a joint minute for disposal of the action. Obviously, what would have to be inserted in that minute in order that the case might be taken out of Court would be an apportionment of the £150. The defenders were entitled to scrutinise that apportionment and, if there appeared any suspicious circumstance in connection with it, they would have been entitled to bring it under the notice of the Court.

In these circumstances, it seems to me that there was no concluded bargain until the joint minute had been adjusted and approved of by the Court.

Lord Cullen.-I think that the letter of the pursuer's agents was intended to conclude on her behalf a de presenti agreement to settle the action in question. I am unable to read the document as meaning that there was to be a further period of bargaining before a settle ment was reached, the vehicle of which further bargaining was to be the joint minute. I think, however, that for the reasons which your Lordships have already stated, the settlement was

sidings beside the Glasgow and South-Western Railway, which runs past the mine. He then brings up an empty waggon into position and sprags it in similar fashion.

3. Parallel to the line of rails on which the coal

waggon is standing while being filled, is another line of rails called the Diamond Road. This line runs from the lies past the south side of the pit-head and terminates at the saw mill to the east of the pithead. On the Diamond Road on wet and showery days, down to the date of the accident aftermentioned, a fire was kept burning between the rails close to where the trigger was working. The purpose of this fire was to dry the scutches used for

27th November 1919.

4. It was the regular custom for the triggers, coal pickers, and other workers at the pit-head to come round the fire in cold weather and eat their "pieces" during the short time off for refreshment. To get to the fire the coal pickers had to come down the stair

Limited.

Workmen's Compensation Act 1906 (6 Edw. VII. cap. 58), section 1 (1)—"Out of and in the course of the employ ment"-Workman oversleeping on pay day and absent from work, but going to colliery to get his pay-Workman waiting at place and time where pay lines were customarily given out - Workman waiting at a fire burning on railway line round which workers were accustomed to sit-Workman injured by runaway railway waggon-Interruption of employment-Added perilHeld that the accident arose out of and in the course of the employment.

The following facts were admitted or proved: 1. In March 1919 the respondent, a boy of sixteen years of age, was employed by the appellants as a coal picker at the coal picking tables at their Mossblown Pit.

2. The coal picking tables are on the pit-head, which is reached by a stair from the ground level. The tables work on the endless-chain principle. The coals from the pit are dropped through shakers on to the upper end of the table. As the coals are carried along the table, the coal pickers, standing on each side of the table, pick out the stones and grit. The coals then drop into a shute at the lower end of the table, and slide into a railway waggon standing on the rails on the ground level at the west side of the pit-head. This waggon, which is looked after by a lad called a "trigger," is spragged, while being loaded, by means of a "scutch," which is a triangular piece of wood placed on the rails in front of the wheels of the waggon. When the waggon is filled, the trigger withdraws the scutch and removes the waggon westward along the rails into the lies or

5. On Friday, 7th March 1919, which was a wet and sleety day, the respondent slept in until it was too late to go to his work. But, Friday being the pay day at the mine, he determined to go to the colliery and get his pay.

6. Pay is made to the surface workers at the colliery in the following manner. Pay lines are made out at the office and given in the office about 1 P.M. to the pit-head gaffer, J. Shannon. The night shift workers assemble at the office door from 1 to 1.15 P.M. and to them Shannon hands their pay lines. He then goes round the pit-head and distributes the pay lines to the employees at work. He gives the pay lines for the coal pickers to Robert Trousdale, the man who looks after the boys. If any coal picker is not at work, Trousdale hands back that boy's pay line to Shannon. The pay lines are cashed at the office by the employees after they get them. All that the respondent knew about the practice of paying was that Shannon went round the pit-head about 1.30 P.M. distributing the pay lines, that he (the respondent) would not get his pay line from that if he did not get his pay line from Shannon he Trousdale if he was not at work on the pay day, and would not get his pay that day at the office. On one pay day before 7th March 1919 the respondent had not been working, and on that day he went for his pay to the colliery, sought out Shannon at the pit-head about 1.30 P.M., received his pay line from him, and thereafter went to the office and got his pay. The trigger, a lad called Alexander Hamilton, had done the same thing on a pay day when he had not been working at the colliery.

7. On 7th March 1919 the respondent entered the colliery by way of the lies and arrived at the fire burning between the rails on the Diamond Road. On these rails, east of and about three yards from the fire, an empty waggon was stationed. This waggon was spragged with a scutch to prevent it moving towards the fire. There was a block of wood between the waggon and the fire, forming a seat, and on this the respondent sat down with his face to the fire to warm himself, as he was wet and cold and it was not yet 1.30 p.m.

8. After sitting a quarter of an hour or more at the fire, it being then about 1.30 p.m., the respondent went to look for Shannon. He went up the stair to the pit-head and entered the weighman's box there and asked Riddox, the weighman, if Shannon was there. Riddox answered that he was not, but that he might be at the saw mill. The respondent then