bequest of the whole moveable estate.

Accordingly, as regards this first point, which, as I have said, arises under Question 2, I agree that that question should be answered as your Lordship has suggested.

The next point which was argued is raised by Question 1, and relates to the testator's heritable property of Falside. The testator was the owner of one-half pro indiviso of that estate. What I have said on the first part of the case seems to me determinative of this part also. The matter, according to my judgment, falls to be decided on a consideration of section 20 of the Titles to Land Act, 1868. I do not read that section, which is a very long one; it just comes to this that the question falls to be put-Whether, in terms of that section, the deed purports to bequeath heritage? Does this will purport to bequeath heritage? In my opinion the deed purports to bequeath the estate of Falside to the widow. A testator, as has been pointed out, may make his own glossary or dictionary. I regard the testator in this will as having, by the terminology employed by him, bequeathed all his property, including Falside, to his widow. The entry "on Falside property. . . . £6000" I read as meaning my property of Falside which I value at £6000." It follows that Question 1, which deals with this point, should be answered in the affirmative.

various items which are headed "Bonds," and 2ND DIV. which include "Falside," under the description Ord v. "all the money that I am possessed of." And Ord.

66

1926.

that, of course, is sufficient; for, as I understood the argument for the second and third November 18, parties, it was not maintained by them that the word "money" is in all circumstances and at all times incapable of including heritable property. It was not suggested that the word was so rigid or intractable as to yield that result. It was rather suggested that, in the ordinary case, it does not do so which one may admit--but that a case may arise, although it apparently has not hitherto arisen, in which the word might legitimately and properly and even necessarily be construed as including heritage.

Now, it appears to me plain in this case that such was the intention of the testator, for, agreeing with your Lordships, I am satisfied that, after the word expenses in the first part of the deed, one must supply, in order to give reasonable effect to the meaning of the testator, the word "namely." Further, I agree with Mr Keith in thinking that there are two features in the document itself—I mean in the part of it headed " Bonds "-which give support to that view. In the first place, as he pointed out, the words “ on Falside property are embedded, so to speak, in the centre of the money bequests; and, in the second place, all these various items are dealt with according to their money value in the column on the right

The Lord Justice-Clerk (Alness).-I concur. The first question which this special case raises is whether Falside is included under the bequest thus expressed by the testator in his settlement -"All the money that I am possessed of." Now, one is not concerned to deny that, in the ordinary case, the word "money," when employed in a testamentary deed, does not include heritage; but again, one must remember that land represents an investment of money, that the collocation in which the word money is used is important, and that the context may be conclusive in determining the content of the word. Here it appears to me that the testator has translated his testamentary language for the benefit of those who have to administer his settlement. He has supplied a catalogue of the moneys to which he refers in the first part of his deed. He has, in my judgment, made it perfectly plain that he intended to include the

was in the testator's mind throughout, and while he may have localised and identified the place or places where his money was to be found by the descriptions at the left-hand side, I think that the whole document, from first to last, sounds in figures, and that he intended to convey the value of his Falside property along with the other money legacies which he undoubtedly conferred.

If that be the true reading of the document, there can be no doubt about the law on the matter, and I do not detain your Lordships further by rehearsing it. I think the testator has given lucid expression to his intention, and I see no reason why that intention should not receive effect.

I have some difficulty-no doubt due to my own fault-in apprehending the argument that the list, under the heading "Bonds," is nothing but a list of specific legacies, that the part of the document headed "Bonds " is to be excised from the very centre of the document and to be regarded as a separate and distinct testamentary writing, that each part of the document is not interdependent but independent, that there is no interplay between the two-that, in short, you are dealing here not with one will but with

Workmen's compensation Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), section 1 (4)Assessment of compensation-Unsuccessful action

against employers at common law-Sheriff applying verdict of the jury therein as a verdict for the defenders,"reserving to the pursuers any rights competent to them under section 1 (4) of the Workmen's Compensation Act, 1906. . . ."Unsuccessful action of reduction being raised thereafter to reduce the

commented on.

decree applying the verdict-Sheriff being then asked to assess compensation under the above reservation and refusing to do so on the ground that he was functus-Defenders maintaining that, in any event, the pursuer having exhausted an alternative remedy (i.e. at common law) were not entitled to claim under the statute-Held that it was competent to assess compensation-Harrison v. Wythemoor Colliery Co. Ltd. ([1922] 2 K.B. 674) distinguished and Expenses Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), section 1 (4)-Unsuccessful action at common law against employers-Sheriff having applied the verdict of the jury as a verdict action of reduction to reduce the decree applying the verdict, and were unsuccessful-Pursuers then claiming an award of compensation and defenders claiming any set-off competent to them under the included the expenses caused to them in the unsuc

in favour of the defenders, the pursuers raised an

section-Held that the defenders' right of set-off

cessful action of reduction.

(Reported ante, 1922, S.L.T. 532; 1926, S.L.T. 590.)

Appeal from the Sheriff Court of Ayrshire
at Kilmarnock.

Mrs Jeanie M'Ghie or Adair and others, the widow and children of the deceased Robert Adair, brought an action in June 1921 in the Sheriff Court at Kilmarnock against David Colville & Sons Ltd., carrying on business at Glengarnock, Ayrshire, craving decree for £1000 as damages at common law in respect of the death of Robert Adair, or, alternatively, £780, or such other sum as might be found due by the defenders under the Employers' Liability Act, 1880. This report relates to the procedure at a late stage in the case, and deals with (1) the assessment of compensation under the Workmen's Compensation Act, 1906, section 1 (4), after there had been more than one litigation between the parties; and (2) to the set-off claimed against any such award of compensation of expenses awarded against the pursuers in such litigations. Reference is made to the previous reports of the litigations noted supra. The following narrative of the history of the litigations is taken from the opinion of Lord Ormidale:

6

"On 22nd November 1920 Robert Adair was severely injured by an accident while in the employment of David Colville & Sons, and died a week later. An action of damages at common law and under the Employers' Liability Act, 1880, and without reference to the Workmen's Compensation Act, 1906, was raised by his dependants in June 1921 against his employers. The latter lodged defences, and, inter alia, averred that the pursuers had elected to claim £300 under the Workmen's Compensation Act, 1906, and that the defenders had paid into Court, on 10th March 1921, £300 to meet this claim. They pleaded: (2) The dependants having elected to take the benefit of the provisions of the Workmen's Compensation Act, 1906, the pursuers are barred from suing the present action, which should be dismissed with expenses.' After a proof on the question of bar, the Sheriff-Substitute, in December 1921, repelled this plea and appointed the cause to be tried by a jury. The case was tried by the Sheriff with a jury on 6th and 7th March 1922, the agents for the parties lodging in process a minute agreeing to dispense with a record of the proceedings. The Sheriff having proponed certain questions to the jury, and the jury having returned answers thereto, the Sheriff, having heard parties' agents on the motion of the pursuer to apply the verdict, made avizandum, and, thereafter, on the 16th March, pronounced the following interlocutor:

6

Finds in law that, in respect the answers returned by the jury to the questions proponed to them do not support the case laid on record.

either at common law or under the Employers' Liability Act, 1880, the verdict is for the defenders; applies the verdict accordingly, reserving to the pursuers any rights competent to them under section 1 (4) of the Workmen's Compensation Act, 1906; therefore assoilzies the defenders from the conclusions of the action, and decerns: . . . .' The pursuer then appealed to this Court, but on 14th July 1922 the appeal was dismissed as incompetent and the case remitted back to the Sheriff to proceed as accords (1922 S.C. 672), and the process was then retransmitted to the Sheriff Court, where it remained until the present appeal was taken. An action for reduction of the Sheriff's interlocutor applying the verdict was thereafter raised in the Court of Session on 17th March 1923, and was, on 11th June 1926, finally disposed of by the House of Lords affirming a judgment of dismissal by this Court.

Meantime, on 30th April 1923, the defenders moved the Sheriff in the original action to order the payment over to them of the £300 consigned by them on 10th March 1921, but the motion was refused in hoc statu by the Sheriff in view of the reduction then pending in the Court of Session.

The motion was renewed on 16th July 1926 and granted by the Sheriff, who, on the same day, refused a motion by the pursuers to find them entitled to compensation under the Workmen's Compensation Acts, and to assess the same at £300. Against this interlocutor the present appeal has been taken."

The interlocutor of the Sheriff of 16th July 1926, refusing the pursuers' motion, is in ordinary terms. The interlocutor by him of the same date, granting the motion for the defenders, included: “. . . . Ordains the clerk of Court to make payment to the defenders of the sum of £300 consigned by them on 10th March 1921 with accrued interest thereon; finds the pursuers liable to the defenders in the expenses of the motion; modifies the same at £2, 2s., and decerns."

The Sheriff (Lyon Mackenzie).—. Reliance was placed upon the words in my interlocutor [dated 16th March 1922, quoted supra]"reserving to the pursuers any rights competent to them under section 1 (4) of the Workmen's Compensation Act, 1906." These words were inserted ob majorem cautelam, and to leave it open to the pursuers to appeal to have my interlocutor varied, if so advised, and not to preserve their statutory right to have the same adjudicated upon in the pending process, as is made quite apparent in the last paragraph of the note to my interlocutor. [The paragraph referred to was as follows: While I have reserved to the pursuers any rights competent to them under section 1 (4) of the Workmen's Compensation Act, 1906, as no motion was made to me for assessment of compensation under the Act before the verdict

was applied as I have done by the foregoing inter- 2nd Div. locutor, it is now too late to do so in this process Adair v. (Slavin v. Train & Taylor, 1912 S.C. 754).]

David

Colville &

In any case they fall short of a specific reservation of the pursuers' rights to have their compensation Sons Ltd. adjudicated upon in the pending process, and as in my opinion this can only be done by a specific motion November 27, and the present motion has only been tabled after I am functus, I have refused the same.

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

Section 1 (4). If, within the time hereinafter in this Act limited for taking proceedings, an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the court in which the action is tried such compensation, but may deduct from such shall, if the plaintiff so choose, proceed to assess compensation all or part of the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act. In any proceeding under this subsection, when the court assesses the compensation it shall give a certificate of the compensation it has awarded and

the directions it has given as to the deduction for effect of an award under this Act.

costs, and such certificate shall have the force and

The pursuers appealed to the Second Division of the Court of Session, and the case was heard on 10th and 12th November 1926.

Argued for the Pursuers: The reservation of the applicants' rights in the interlocutor applying the verdict for the defenders justified the present application. Slavin v. Train & Taylor (1912 S.C. 754) was distinguishable, having regard to the judgment in Perth General Station Committee v. Stewart (2nd case, 1924 S.C. 1004 at pp. 1013 and 1015). The applicants exercised their right to proceed at common law instead of under the statute, but section 1 (4) of the Act of 1906 made it competent for the Court in which the action was tried to assess the compensation due under the Act, subject to certain deductions. Harrison v. Wythemoor Colliery Co. Ltd. ([1922] 2 K.B. 674); Burton v. Chapel Coal Co. Ltd. (1909 S.C. 430); Cribb v. Kynoch Ltd. (No. 2) ([1908] 2 K.B. 551); Elliot's Workmen's Compensation Acts (9th ed., p. 402), decide the question as to the workman's right of election, which is irrevocable. No time limit was imposed in the reservation, and the latter could be taken advantage of within the long prescriptive period. The Sheriff himself put the reservation in his interlocutor, and could not now be heard to say that it meant nothing. The process was still pending to work out this question under section 1 (4), and the Sheriff erred in holding that he was functus. The

1926.

1926.

2ND DIV. Court ought, accordingly, to assess the compenAdair v. sation under the Act, and an Appellate Court David could now do so under the Act of 1923 (13 & Colville & 14 Geo. V. cap. 42). The compensation was a Sons Ltd. statutory right, and it was never the intention November 27, of the Legislature to limit the compensation payable. The terms of section 18 of the Act of 1923 were so strictly limited that the Court could not bring in the expenses of any other action and set them off against the action under the statute. Compensation was a statutory right, not one at common law (vide Act of 1906, First Schedule (5), (19), Second Schedule (14)). The Court ought to assess compensation at £300 with no expenses, as, excluding the action of reduction, expenses in the litigation could be said to balance if set off, and the pursuers sued in forma pauperis in the House of Lords. Henderson v. Corporation of Glasgow (1900, 2 F. 1127) and Rosewell Gas Coal Co. Ltd. v. M'Vicar (1904, 7 F. 290) were also referred to. Argued for the Defenders: It was not disputed that the pursuers could make a claim at common law, but it was only as an alternative that the Workmen's Compensation Acts allowed a claim against the employers, and that was only by way of arbitration. It was not open to a pursuer to take both remedies. The cases of Cribb and Burton (cit.) made it clear that a pursuer had an option, but must elect as to the particular remedy he was to follow. The pursuers here proceeded by way of an action at common law, and the decision went against them. Having got a judgment, any claim for compensation then lapsed. In Slavin (cit.), which was followed in Perth Station General Committee (cit.), it was decided that the motion for an award of compensation under the Workmen's Compensation Act, 1906, must be made before the verdict was applied. That had not been done here, and a pursuer was not entitled to appeal and attempt thereby to reserve his claim to such an award. This was a statutory right, and nothing the judge did could add or detract from it. The reservation in the interlocutor had nothing to do with the action. "Determined" in section 1 (4) just meant that a judgment had been obtained. The reservation was collateral, and the appeal to this Court wiped it out. In Harrison (cit.) the amount of compensation was assessed, and the pursuer was held to have elected and further proceedings to be barred. That view was also taken by the Scots Courts in Burton (cit.) at p. 434. Once the verdict was applied the right of election was lost (Perth Station General Committee (1st case), 1923 S.C. 356 at p. 362; Harrison (cit.) and Burton (cit.)). If assessment was competent, then £300 was the amount. Expenses.-Section 1 (4) of the Act gave a right to the defenders to set off any costs caused by the pursuers bringing an action

at common law instead of making a claim under the Act. These costs included the expenses of the unsuccessful action at common law, and also of the action of reduction of the Sheriff's decree applying the verdict.

On 27th November 1926 the Court pronounced the following interlocutor: "Sustain the appeal; recall the interlocutors of the Sheriff appealed against, dated 16th July 1926; find that the pursuers are entitled to compensation under the Workmen's Compensation Acts, and assess the same at the sum of £300; find that the pursuers are entitled to payment thereof out of the sum of £300 consigned by the defenders in the Sheriff Court on 10th March 1921 to meet such compensation, with the interest accrued thereon, but under deduction of the taxed amount of the expenses found due by the pursuers to the defenders in the process of reduction in the Court of Session at the instance of the pursuers against the defenders, less the expenses to which the pursuers were found entitled against the defenders in the said process, as the same shall be ascertained after taxation; appoint a certified copy of this interlocutor to be issued as a certificate of the above award, and used, if necessary, as a memorandum of agreement between the parties under the Workmen's Compensation Acts; ordain the sheriff-clerk to make payment to the pursuers and to the defenders of such portion of said consigned sum as effeirs to them respectively, and that on production of a certified copy of the interlocutor; find the pursuers entitled to expenses against the defenders in this appeal; find them also entitled to the sum of £2, 2s. of modified expenses in connection with the Sheriff Court proceedings for assessment of compensation; and decern against defenders for payment thereof accordingly; remit the pursuers' account of expenses to the Auditor to tax, and to report; and decern."

The Lord Justice-Clerk (Alness).-The history of this case, so far as relevant to the question which has now arisen, is as follows: The pursuers sued the defenders in the Sheriff Court for damages at common law and under the Employers' Liability Act. The defenders consigned in the hands of the clerk of court £300, being the sum for which they admitted liability under the Workmen's Compensation Act. They pleaded that they were immune from liability on the grounds on which the action was based. The case was tried before the Sheriff and a jury. The jury returned a verdict which, after argument, the Sheriff, on 16th March 1922, held to be a verdict for the defenders. Attempts by the pursuers, by way of appeal and by way of reduction, to upset that decision failed.

The