Kilmarnock, to have the record of a memorandum of agreement entered into between himself and the Ardrossan Harbour Co., Ardrossan, removed from the register, on the ground that the agreement had been obtained by undue influence on the part of an insurance inspector acting for the company.

The Sheriff-Substitute (Bartholomew) having held that he had no power to make the order applied for, the claimant obtained a stated case for appeal to the Court of Session. The stated case set forth :

This is an arbitration in which the claimant craved the Court to order that the record of the memorandum of agreement under the Workmen's Compensation Acts, dated 23rd October 1924, and recorded on 5th November 1924, between the claimant and the respondents, a copy of which is annexed hereto, be removed from the register on the ground that said agreement was obtained by undue influence on the part of an inspector of an insurance company acting on behalf of the respondents. Answers were lodged by said respondents, in which, inter alia, they pled that a period of six months having elapsed from the date of the recording of the memorandum above referred to, the application was incompetent and should be dismissed. [This formed the respondents' fourth plea in law.] I held the following facts admitted or proved :

The memorandum of agreement which the claimant craved the Court to remove from the register was recorded on 5th November 1924. The minute for the claimant craving removal of the memorandum from the register was lodged on 27th March 1925, which was within six months from the date of recording of the memorandum. On 6th May the period of six months had expired, and the respondents maintained that it was incompetent under the Workmen's Compensation Act, 1906, Second Schedule 9 (e), to make the order craved. The provision in the schedule is as follows: "The judge may, within six months after a memorandum of an agreement as to the redemption of a weekly payment by a lump sum, or of an agreement as to the amount of compensation payable to a person under any legal disability, or to dependants, has been recorded in the register, order that the record be removed from the register on proof to his satisfaction that the agreement was obtained by fraud or undue influence, or other improper means, and may make such order (including an order as to any sum already paid under the agreement) as under the circumstances he may think just.'

On the facts as above stated, I held that I had no power to make the order applied for, and refused the crave of the claimant.

The Question of Law for the opinion of the Court was:

Whether, on the admitted facts above set forth, I was right in holding that I have no power to deal with the application by the claimant ? "

COURT

JUDGES.

1926.

The respondents' argument was founded upon their fourth plea in law. The memorandum of agreement OF SEVEN which the claimant craves the Court to remove 1924. The minute for the claimant craving removal v. from the register was recorded on 5th November Paterson of the memorandum from the register was lodged Ardrossan on 27th March 1925, which was within six months Harbour from the date of recording of the memorandum. Co. On 6th May, however, the period of six months had February 20, expired, and the respondents now maintain that it is incompetent for me under the Workmen's Compensation Act, 1906, Second Schedule 9 (e), to make the order craved. The provision in the schedule is as follows: "The judge may, within six months after a memorandum of an agreement as to the redemption of a weekly payment by a lump sum, or of an agreement as to the amount of compensation payable to a person under any legal disability, or to dependants, has been recorded in the register, order that the record be removed from the register on proof to his satisfaction that the agreement was obtained by fraud or undue influence, or other improper means, and may make such order (including an order as to any sum already paid under the agreement) as under the circumstances he may think just."

It was argued for the respondents that this provision must be strictly construed (Kerr v. Bryde, 1923 S.C. (H.L.) 12; North British Railway Co. v. Budhill Coal and Sandstone Co., 1910 S.C. (H.L.) 1), and that, on a strict construction of the provision, an order can not be made after six months from the date of recording the memorandum, even if application has been made within six months. For the claimant, reference was made to Maxwell on the Interpretation of Statutes (pp. 249, 234, 230) and to the case of Park v. Anderson Bros. (18th July 1924, 61 S.L.R. 652), in which the cases of John Brown & Co. v. Orr (1910 S.C. 526) and Mackinnon v. Fairfield Shipbuilding and Engineering Co. (1920, 2 S.L.T. 118; 1921, 2 S.L.T. 270) were considered.

I am very unwilling to accept the construction of the provision propounded by the respondents.

Where a party desiring removal from the register of a memorandum, under Schedule II. (9) (e), has made his application within a reasonable time after the grounds upon which it can be made have become known to him and before the expiry of six months from the date of recording the requirements of the statute have been complied with so far as he is concerned. If, for any reason for which the applicant is not responsible, the order cannot be obtained before the expiry of the six months, it does not appear to be in accordance with equity that he should lose his statutory remedy, especially if the delay by whatever cause occasioned has been considered.

It seems to me that in interpreting a provision of this nature, such a construction should, if possible, be placed upon it as will enable a party founding upon it to know with certainty what are his rights and obligations. If the respondents' argument is right, a party seeking removal of a memorandum before which he must make his application. He has from the register has no certainty as to the date to estimate how long the procedure will take, and it may be impossible to estimate this period even

It was argued on behalf of the claimant that

COURT

1926.

the result of the cases of John Brown & Co., OF SEVEN Mackinnon, and Park, is that an action of reduction JUDGES. is incompetent until the period of six months has Paterson expired, and that after the expiry of the period of V. six months it is only competent if, within the period Ardrossan of six months, the party seeking to get rid of the Harbour memorandum was unaware of the grounds on which Co. he could apply; and that therefore, if grounds for February 20, the application emerged during the six months and application was made, but too late to secure an order, the applicant might find himself deprived entirely of a remedy. I do not think that these cases necessarily point to this result, but I think that in all of them it was assumed that the applicant had a full period of six months within which he might make his application, and what the result might be if he presented his application within the six months but too late to secure an order upon it was not considered.

For these reasons I am very unwilling to accept the respondents' construction of the provision. It seems to me that the equitable construction would be that the power of the judge to make the order comes into existence on the presentation within six months of the application, and that this power remains even after the expiry of the six months until

the order is made.

I do not feel, however, that I am at liberty to adopt this construction. The schedule limits, not the time within which application for the order may be made, but the time within which the judge may make the order. In the case of Schofield v. W. C. Clough & Co. ([1913] 2 K.B. 103; 6 B.W.C.C. 66), Cozens Hardy M.R. said: "Schedule II. (9) (c) says the judge may rectify. Schedule II. (9) (e) says he may within six months order that the record may be removed. The distinction is here drawn plainly between rectification and removal. The judge may rectify the register at any time. One knows nothing is more common than that. The agreement tendered for registration has de facto been made. Rectification to bring the record in accordance with the facts can be made at any time. There is something quite different in removal under Schedule II. (9) (e). There is here a period of limitation; no more than six months is to elapse." Buckley L.J. said: "The County Court judge has a limited jurisdiction. Where by reasons of fraud or undue influence or other means a memorandum ought to be removed he may only adjudicate on that matter within six months." Hamilton L.J. said: "By inserting a paragraph which gives to the County Court judge an express jurisdiction to determine within a limited time questions relating to the binding effect of agreement and to give effect to his determination by ordering

removal, and by doing that in addition to the power of rectification, I think the Legislature has given a possible indication that the power to rectify is a power to rectify alone."

In view of the words of the schedule and the terms of the opinions above quoted, I do not think that I have now any power to make the order applied for.

The case was heard before the Second Division on 17th November 1925. On 2nd December 1925 the Court appointed the cause to be argued before seven judges.

On 2nd February 1926 the case was heard before seven judges.

Argued for the Appellant: The provision of the schedule was satisfied if the application was presented within the statutory period. The general principle that jurisdiction dated from the time it was invoked should be applied here. Here the appellant had made his application timeously, which distinguished his case from Schofield v. W. C. Clough & Co. ([1913] 2 K.B. 103). Alternatively, if the provision of the schedule was to be so read that the operative order must be within the statutory period, then the delay of the arbitrator should not exclude the right of the appellant to an order. The word may "in the provision was imperative quoad the appellant, but directory quoad the arbitrator. If the appellant failed in this statutory remedy, it was doubtful if he could avail himself of the common-law remedy of reduction (John Brown & Co. Ltd. v. Orr, 1910 S.C. 526, per Lord President Dunedin at P. 531; Mackinnon v. Fairfield Shipbuilding and Engineering Co. 1920, 2 S.L.T. (O.H.), 118, and 1921, 2 S.L.T. 270; Park v. Anderson Bros., 1924 S.C. 1017). The following authorities were referred to: Maxwell on Interpretation (6th ed.), pp. 339, 406; The Queen v. Justices of London, [1893] 2 Q.B. 476; The King v. Justices of Middlesex, 1817, 6 M. & S. 279; Banff County Road Trs., Petrs., 9 R. 20; Shepherd v. Gibson's Trs., 8 M. 31; Stark and Hogg, Petrs., 1886, 23 S.L.R., 507; Buchanan and Others, Petrs., Boswall1910 S.C. 685; John Haig & Co. Ltd. v. Preston, 1915 S.C. 339 at p. 348; M'Cabe v. Mount Vernon Colliery Co., 1925 S.C. 574.

Argued for the Respondents: The meaning of the provision was plain. The appellant's submission amounted to reading the provision within the statutory period. That was conas if the application, not the order, must be trary to the plain words of the provision, which must be taken as they stood, even though anomalous (Feeney v. Miller, 1925 J.C. 65). The purpose of the provision was to provide a shorthand procedure in place of the commonlaw method of reduction. It was natural to limit the statutory jurisdiction to make an order to a definite period. Reference was made in particular to Schofield's case (supra, per Cozens Hardy M.R. at p. 107; Buckley L.J. at p. 108; and Hamilton L.J. at p. 110). Authorities referred to on the general construction of statutory provisions: Becke v. Smith, 1836, 2 M. & W. 191; Attorney-General v. Lockwood, 1842, 9 M. & W. 378; Miller v. Salomons, 1853, 7 Ex. 475; Ex parte Rashleigh, 1875, 2 Ch. D. 9; Salmon v. Duncombe, 1886, 11 A.C 627.

On 20th February 1926 the Court (diss. the Lord President, the Lord Justice-Clerk,

and Lord Ormidale) answered the question of law in the negative, and remitted to the arbitrator to consider and deal with the appellant's application.

The Lord President (Clyde).-The question is whether an order for removal of a memorandum of agreement from the register, under paragraph (9) (e) of the Second Schedule to the Act of 1906, can be made after the expiry of six months from the date when the memorandum was recorded. The powers of the Sheriff-Substitute under paragraph (9) are special and statutory, alike in their source and in their limitations. The power conferred on him, in subhead (c), to rectify the register, is unlimited as regards the time for exercise of the power-in the words of the enactment, he may at any time rectify the register." The power conferred upon him a few lines lower down, in subhead (e), to remove a memorandum from the register, is limited within a period of six months from the date of recording-in the words of the enactment, he may, within six months after a memorandum .... has been recorded. . . . order that the record be removed from the register." Unless these words are read in some other than their plain and natural meaning there can be no doubt whatever that an order of this kind is incompetent unless it be made before the six months have expired.

The appellant maintains that, on a sound construction of subhead (e), the time limit applies, not to the exercise by the Sheriff-Substitute of the power conferred by it, but to the initiation of the proceedings by which the exercise of that power is invoked. He founds on the general principle, according to which, once a claim of right has been competently submitted to the decision of a Court of law, the right claimed is preserved from perishing by the subsequent operation of laws whose effect depends upon the lapse of time (prescription, for instance) or even under the operation of subsequent legislation which adversely affects the right. Juris diction, says the appellant, moreover, depends on the state of matters at the initiation of the legal proceedings, and is not lost by a change of circumstances occurring during the litigation, even though the change be such that (had it preceded the litigation) there would have been no jurisdiction. Therefore, he argues, the Sheriff-Substitute cannot-consistently with general legal principle-be deprived of the right and duty to carry to decree a jurisdiction in which he has once been competently vested.

The trouble is that the only power the SheriffSubstitute has, under the jurisdiction in question, is a six months' power; and it must be kept in mind that, apart from the statute, the Sheriff-Substitute has no more power to

JUDGES.

February 20,

1926.

alter the judicial record than he has to entertain COURT an action of reduction of the memorandum OF SEVEN itself. The general principles of law on which the appellant relies are not incapable of modi- Paterson fication, or of subversion, by Act of Parliament; V. Ardrossan and if a new and special power is conferred on Harbour the Sheriff-Substitute by statute to make a Co. particular kind of order within six months from a specified date, the general legal principles referred to afford no ground whatever for applying the new and special power to an extended period. Little help is obtainable from decisions pronounced with reference to other statutory provisions; and the case of The Queen v. The Justices of the County of London ([1893] 2 Q.B. 476) does not appear to me to justify any departure from the plain meaning of the enactment with which the present case deals. In Schofield v. Clough ([1913] 2 K.B. 103), which was a case on paragraph (9) (e), there are dicta which point to the conclusion at which I have myself arrived. But the present question was not expressly raised or argued there; and I do not therefore go on those dicta, but on the words of the enactment itself, which are, in my opinion, so clear and unmistakable as to forbid any but the natural and literal construction.

While I find myself compelled to decide the question put to me in the case in a sense adverse to the appellant, I confess to have struggled to reach an opposite result. The limitation of a legal remedy by reference to the date within which proceedings must be initiated is familiar and intelligible. But a limitation by time of the power of a Court to pronounce a remedial decree is certainly not familiar, and I cannot bring myself to regard it as other than inconvenient and possibly unjust in operation-all the more so, if the common law remedy by way of reduction (pursued before this Court) is impliedly excluded (see John Brown & Co. Ltd. v. Orr, 1910 S.C. 526, per Lord Dunedin at p. 531). It may well be that it is excluded; but the present case does not appear to present a suitable opportunity for the expression of views upon that matter, and, so far as my own opinion is concerned, I desire to reserve it. It is perhaps no more than fair, in view of the fact that a majority of your Lordships think that paragraph (9) (e) can be construed in the way contended for by the appellant, to say candidly that I have no clue to any scheme of legislative intention which reconciles the provisions of that paragraph (read as I think they can only be read) with what I myself should humbly have regarded as æquum et bonum in the circumstances dealt with by the enactment. this is not the first time that a difficulty of that kind has perplexed the Court in construing the provisions of the Workmen's Compensation Acts. As Pseudolus said of his master's corre

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