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arbitration. I see no reason, however, why the order for consignation should not stand. I move your Lordships accordingly.
Lord Atkinson.-I concur.
Lord Shaw of Dunfermline [read by Viscount Dunedin].-A perusal of the opinions of the learned judges of the First Division shews that they were naturally reluctant to come to the decision at which they arrived, but their Lordships, like the Sheriff-Substitute, felt constrained to reach that decision on account of the terms of the statutes. I cannot, speaking for myself, construe the material sections of the statute as has been done in the Court below.
There are three points to which I wish to call attention :
(1) From the clear opinion of the learned Lord President it appears that if, for any reason, when the procedure by way of medical reference (of the point whether or not an injured workman has recovered from his injury) breaks down, then the provision for consigning the sums in dispute also breaks down, and the employer must continue to make weekly payments to the workman on the footing that he is incapacitated, although this may ultimately prove to be entirely contrary to the fact.
In my view the right to consign does not so break down. When does the right of the employer to pay the disputed sums into Court arise? It arises under 14 (ii), where an application has been made to refer the dispute to a medical referee. How long does that right to pay into Court continue? It continues to be lawful to the employer" pending the settlement of the dispute." I think the sound construction of these words is that the settlement of the dispute is none the less pending, although the form of getting it settled may not be by the verdict of a medical referee but by the verdict of an arbiter who is appointed on account of the troublesome nature of the case.
appear. Such a construction, it is clear, may
(2) The more radical and underlying issue
(3) A certain perplexity has entered into this case, because it comes before the Courts by way of suspension of a charge for payment. When the employers made application for a medical reference they would, of course, have been entitled to consign in Court, as already referred to; but the workman, not being content with this statutory method, charged the appellants for payment. What the appellants then did was to bring this suspension and to consign in that process all the disputed compensation, to abide by the decision of the Court, the result being that neither party was prejudiced, and both parties were protected just as they would have been protected by the payment made in the medical reference procedure. It is in that state of circumstances that the charge for payment by the workman was made. This very kind of question must have been mooted in Gibson v. Wishart, and I ventured, in the following language (1914 S.C. (H.L.) at p. 63), to forecast what was the sensible course to be adopted by the parties. I said: "The employer alleges that the incapacity ceased as at a certain date and that the compensation should cease then, and he, in fact, has stopped on that account all further payments. . . . . Assume that in such an instance the workman denies any change of circumstances, and that accordingly a charge for payment in execution of the award is made. In my opinion the duty of the employer in such circumstances is instantly to institute proceedings for review by the arbitrator under the statute. He cannot bring a suspension of the charge in the ordinary sense so as to review the disputed circumstances in that process; but if the charge is persisted in he may pro forma bring a suspension and table his application to It is most essential that remedial statutes the arbitrator for review, and the Court would which in their course give machinery for the at once suspend in hoc statu and sist all propurpose of reaching or quantifying a remedy cedure in the suspension to enable the proper should not, if it can be avoided, be construed and statutory review to proceed. This, in my in such a way as to make the remedy itself dis-opinion, is the sensible course. It is a course
This last consideration may incidentally cause a much longer period to be occupied in the pending of the dispute, and that, incidentally, is also a reason why the important right to consign should not be taken away.
I therefore humbly think the answer to the construction taken in the Courts below is simply that, under the statute, the appellants did make the application for review, and that the dispute is still pending, and was so pending when consignation of the compensation was made.
Coal Co. Ltd. v.
HOUSE which is suitable in Scotland and it is in sub-stay of execution according to the law of
Dee. of which still stands.
December 3, 1926.
By virtue of an award made under the Workmen's Compensation Act in the year 1913, the workman had received for many years the payment of a weekly sum. In 1925 the employers alleged that the man's incapacity for work had ceased, or at any rate was lessened. The workman denied it. There was a bona fide question at issue between them. The workman charged the employer. The employer took proceedings for suspension. The question is whether in that state of facts the employer could be compelled to pay by reason of the charge, or whether in his
In those circumstances this suspension was brought that is to say, a suspension of a charge to make payment of a sum or sums of wages as to which a dispute was pending and a review was sought. The object of this suspension was to achieve exactly the position thus pointed out in Gibson v. Wishart, and the plea in law for the pursuers is in the following terms: "The pursuer having applied for a review of the defender's compensation as at 8th September 1925, the said charge should be suspended pend-proceedings for suspension it was competent for ing judgment in the review proceedings."
That plea appears to me to be unanswerable. I am of opinion that the charge should have been suspended upon the consignation which has been made. I agree with Lord Wrenbury in thinking that there is nothing whatsoever in the Compensation Acts to interfere with the suspension procedure, or, in particular, with the power of the Court to refuse a suspension except upon consignation.
In the present case consignation has been made; the interests of parties are conserved; the purpose of the process is to allow review to proceed. I do not think it to be in accord with principle, with the statute, or with the authorities cited, that such a suspension should be refused. Should the result in the process of review be that the workman is found not to have recovered, or only to have partially recovered, the consigned money, or that part of it awarded, will be received by the workman in accordance with his rights; and should, on the contrary, he be found to have recovered, the consigned money will be returned to the employer, no part of it having ever been really due to a workman whose incapacity had ceased. I am humbly of opinion that the appeal succeeds.
Lord Wrenbury [read by Lord Carson].-I am glad to arrive at the conclusion (a conclusion which every judge in the First Division would evidently have been glad to reach) that the Act does not inflict upon the employer the injustice which they thought it involved. I express myself with some hesitation in a case which involves Scots procedure which is not familiar to me; but having learned from the noble and learned Lord in the chair that a creditor's "charge" in Scots law is equivalent to the issue of execution according to the law of England, and that process of suspension in Scots law is equivalent to an application for
the Court to grant suspension on the terms of payment into Court of the sums which the man alleged, and the employer denied, to be due.
The employer made application under section 11 (1) of the Act of 1923 to refer the matter to a medical referee. Had that been granted, section 14 contains provisions under which, pending the settlement of the dispute, the employer would have been entitled to pay into Court instead of paying to the workman, with the result that he would escape the risk of failing to obtain repayment if the question in dispute were determined in his favour. But it was not granted. The Court, under the provision of section 11 (1), found that the matter was one in which, owing to exceptional difficulty or for other sufficient reason, there ought to be a reference to arbitration. Has the employer in that state of facts lost the protection of payment into Court instead of to the workman pending the settlement of the dispute? That is the question to be answered.
Section 14 of the Act of 1923 enacts that an employer shall not be entitled to end or diminish a weekly payment except in certain stated cases. Section 14 (ii) enacts that where an application has been made to refer the dispute to a medical referee certain things shall ensue. Upon this two observations: (First) that the words " an employer shall not be entitled " do not extend to exclude the power of the Court to do what is just upon process of suspension, and (secondly) that section 14 (ii) applies when application has been made, whether an order has been made upon it or not. The application may or may not result in an order. The enactment applies none the less just as if there were inserted after the words "to a medical referee" the words which may or may not result in a medical reference."
The fact is that the proceedings may result in either one of two things, viz. either a medical reference or an arbitration. The section has
f worked out the former of these; it has not worked out the latter. If an arbitration supervenes, there is nothing which prevents the Court from doing justice in proceedings for suspension, and there is nothing which confines section 14 (ii) to the case in which the application has not been followed by an order. At the same time it is true that if the application is not followed by an order, the destination of the fund in Court is not worked out by the section. The Act is obviously ill-drawn, but in my opinion it does not leave the employer exposed to the danger and injustice against which the Act protects him if there were a medical reference instead of an arbitration by order of the Court. The Court has, I think, power in the proceedings for suspension to make such order for payment into Court as it thinks just, and to deal with the money in Court in such manner as is right when the arbitration is concluded.
Landlord and tenant-Small Landholders (Scotland) Act, 1911 (1 & 2 Geo. V. cap. 49), section 2 (1) (iii) Landholder-Application by tenant for finding that he was a landholder Improvements made by tenant or "his predecessor in the same family "Meaning of "predecessor "Whether others besides immediate predecessor included-Held that the Land Court were entitled to take into account, in favour of the applicant, improvements executed by his predecessors in the same family other than those executed by his immediate predecessors.
George Irvine, Sauchentree, New Aberdour, Aberdeenshire, applied to the Land Court for an Order determining whether he was a landholder or a statutory small tenant in and of the holding of Sauchentree, and for an Order fixing the first fair rent therefor. The said holding consisted of about 48 acres on the estate
of Brucklay, of which Alexander Dingwall 1ST DIV. Fordyce was proprietor. The landlord opposed the application.
The application was first heard by a single member of the Land Court, who found it proved that the applicant and his predecessors in the same family had provided or paid for the greater part of the buildings and other permanent improvements on the holding without receiving from the landlord or any predecessor in title payment or fair consideration therefor: found and declared that the applicant was a landholder within the meaning of the Small Landholders (Scotland) Acts, 1886 to 1919, and fixed a fair rent.
The landlord appealed to the full Court, which, on 3rd June 1926, refused the appeal, and stated a case for the opinion of the Court of Session.
The case set forth, inter alia:
The first member of the applicant's family to occupy the holding was William Bruce, his greatgrandfather, who became tenant prior to 1812. At that time the holding consisted of 22.62 acres, of which 9.75 acres were arable and the remainder had
not then been reclaimed. In 1812 William Bruce was succeeded as tenant by his son William Bruce, who was succeeded in 1884 by his daughter Mrs Irvine, who was the mother of the present applicant. The applicant succeeded to his mother in 1899.
The Court found that the greater part of the buildings and other permanent improvements had been provided or paid for by the applicant and by his predecessors in the same family without receiving from the landlord payment or consideration therefor.
It was not disputed that if the applicant could only found upon the improvements executed by himself and his immediate predecessor, the said Mrs Irvine, he would fail to prove that he and his said predecessor had provided or paid for the greater part of the permanent improvements on the holding, and he would not be qualified as a landholder.
6. The appellant maintains that the said Orders appealed against are erroneous in point of law, in respect that the Court, in deciding whether the applicant is a landholder, were only entitled to take into account in his favour the buildings and other permanent improvements made by him and his predecessor Mrs Irvine; that the Court were not entitled to credit the applicant with improvements made by William Bruce and William Bruce, junior; and that, on the facts found by the Court, the applicant should be held to be a statutory small tenant.
7. The applicant maintains that the said Orders are sound in law.
The Question of Law for the opinion of the Court was:
"Whether, in determining whether the applicant is a landholder, the Court were entitled to take into account, in favour of the applicant, buildings and other permanent improvements executed by
Irvine v. Fordyce.
November 17, 1926.
every holding which at the commence
ment of this Act is held under a lease.
Provided that such tenant from year
(a) shall. . . . be held an existing yearly tenant or a qualified leaseholder within the meaning of this section in every case where it is agreed between the landlord and tenant or leaseholder, or in the event of dispute, proved to the satisfaction of the Land Court, that such tenant or leaseholder or his predecessor in the same family has provided or paid for the whole or the greater part of the buildings or other permanent improvements on the holding without receiving from the landlord or any predecessor in title payment or fair consideration therefor; and
(2) In the Landholders Acts the word "land-
The case was heard before the First Division
judgment of Lord Guthrie in the case of Kidd v. Morison (1916 S.C. 759). In that case Lord Guthrie expressed the opinion, and indeed, so far as his own judgment is concerned, seemed to proceed as one of his grounds upon it, that the word "predecessor" in section 2 (1) of the Small Landholders Act of 1911 means predecessor in the singular and does not include predecessors. That construction would, I think, so far as my information goes, be contrary to the practice which has followed upon the Act. But we are not constrained by that; we must construe the Act.
to certain counties only, and, I think, originally When the Crofters Act was passed it applied only to persons with a rent under £15-subsequently raised to £30-but it was proposed in 1911 to extend the system of small holdings, and to bring in small holdings in other than crofting counties. Now, the small holdings in other counties were of two classes. Speaking generally of the Lowlands of Scotland, small holdings were just small farms under the usual tenure and conditions, but here and there throughout the country there were holders of small pieces of land (small farmers) who were really in the same position as the crofters in the Highlands. They held under a customary sort of tenure different from the year to year tenure of other tenants in the south generally, where the landlord makes improvements and keeps up the buildings. Accordingly, as in the case of the crofters, a certain number of people throughout Lowland Scotland enjoyed their holdings subject to the traditionary burden of maintaining them. It was now proposed to put that class virtually upon the same footing as the crofters, but it was thought to be unnecessary and unreasonable to extend the same advantage to tenants who had been supplied with the equipment of their farms by the landlord. Accordingly, the criterion adopted as to whether a man should become a landholder was whether he or his predecessor in family had made the improvements, or whether, on the other hand, they had been made by the landlord. The Argued for the Respondent: There was definition of predecessor is quite intelligible nothing to displace the general rule that the where one considers the case of those holdings singular included the plural. It would be very which have come down from generation to anomalous if the status were to be fixed by generation in the same family, and the equipreference to improvements made by the tenant's ment of which had been built up by successive immediate predecessor only, and the rent was generations. This consideration would point to be fixed by reference to improvements made very strongly to the conclusion that the Act, by his predecessors in the same family gener-in providing that the predecessor's improveally (Crofters Holdings (Scotland) Act, 1886, section 6).
Argued for the Appellant: The phrase "his predecessor in the same family" meant "immediate predecessor." It was provided by the Interpretation Act, 1889, section 1 (1) (b), that the singular should include the plural unless a contrary intent were found. Here a contrary intent could be found in the distinction between the phrase "his predecessor" used of the tenant and "any predecessor" used of the landlord. The latter phrase might include the plural, but the former could not (Kidd v. Morison, 1916 S.C. 759, per Lord Guthrie).
On 17th November 1926 the Court answered the question of law in the affirmative.
Lord Sands.-The question that has been here put to us seems to have been suggested by the
ments are to be taken into account, means predecessors of the same family during the generations that have been in the holding. But it may be doubtful how far as matter of construction we are entitled to be swayed by public knowledge of the intention of the particular Act in this regard. I do not require,
November 17, 1926.
however, for the purposes of this case to con- the words " predecessor in the same family as sider how far it is legitimate to call such con-used in section 2 (1) (iii) (a) with the similar siderations in aid. words used in the Crofters Act of 1886, where, Fordyce. Under the Interpretation Act of 1889 the in section 6 (1) and section 8 (b), the expression singular includes the plural unless the contrary is "predecessors in family." If we were to appears from the context. The burden is upon construe the expression in the 1911 Act in the the person insisting upon the singular to make singular and the expression in the 1886 Act in out that from the context of the Act the singular the plural, it would lead to the complication of only was intended and the plural was excluded. procedure which is referred to in the judgment That burden has not been regarded, so far as I of the Land Court. It is difficult to believe have studied recent cases, as a very light one. that the Legislature intended to create any such All that is founded upon here is the contrast complication, and an interpretation of the between "predecessor " in the case of the section which leads to such a result should be tenant and, in the same clause, any pre- avoided. Now, one cannot overlook that, in decessor in title of the landlord." That is an the interval between the Act of 1886 and the ingenious argument, and I do not say it is Act of 1911, the Interpretation Act of 1889 was unworthy of consideration, but it appears to passed, which provided that in Acts of Parliame to be too slight to displace the general rule ment words in the singular must be construed of construction. I do not think that we can to include the plural unless there is any indicareasonably attribute to the Legislature such a tion of evidence of a contrary intention in the meticulous accuracy in the choice of small Act itself. I do not think there is any evidence particles as to found upon this single detail the in the Act of 1911 to shew that the word inference that when the singular was used the predecessor has been here used with the inplural was not intended to be included. That tention of confining it to the singular. An inconsideration is strengthened by an examination ference that the word predecessor is designedly of the provisions in regard to compensation for used in the singular was attempted to be drawn improvements and the fixing of fair rents. In from the words at the end of the section which these cases, as is pointed out by the Land Court, provide that payments by the landholder to the provision is quite clear that it is the pre- the landlord may be made to him or any decessors in the same family who are contem- predecessor in title." These words clearly plated. Of course the Legislature may do any- indicate a plurality of predecessors, but the thing, but it would be very arbitrary, I think, use of the word any appears to me to be that the rent should be conditioned by the explained by the fact that, whereas the prefact that the remote ancestors made improve-decessors of the landholder are all predecessors ments, whereas the right of a person to be regarded as a landholder was to be conditioned, not by what had been done by successive generations, but only by what had been done by his immediate predecessor who might only have enjoyed the holding for a very few years. I think that this is an indication that the Act contemplated that a predecessor of any generation should be taken into account in considering the question whether or not the tenant was entitled to become a landholder. Criteria or indications of this nature are not necessary. The burden is upon the person arguing that the singular does not include the plural. But when there is here nothing to suggest this but the use of the word "any in the same clause, we are justified in looking whether there is not something to be said against it. In the circumstances to which I have adverted there are real considerations which, in my view, far outweigh the mere verbal argument based upon the word "any." I am accordingly of opinion that we should answer the question stated in the affirmative.
Lord Blackburn.-I concur. I think we are bound, if we can, to try to reconcile the use of
in one family, the predecessors of the landlord
Lord Ashmore.-The question for determina-