11 Under the second schedule the county court judge cannot award a lump sum as costs.13 Costs may be taxed immediately at the close of the hearing.14 erly be awarded against an employer who, for costs in an appeal under the comhas never disputed his liability to com- pensation act, taken by the applicant, is pensation nor the amount thereof, and to be made to the applicant first before has paid such an amount into court with- the respondent can apply to the court out arbitration proceedings being taken for such security.17 Security for costs against him.10 Costs may be awarded may be ordered although the execution to the applicant although he does not has been stayed by the county court secure as large an award as he had judge, thus intimating that there was a claimed, but not where he secures a question to be determined by the apsuspensory award only.12 pellate court.18 So, security for costs may be ordered where the appellant, although a poor man, was not in a position to make an affidavit for the purpose of appealing in forma pauperis.19 And upon an appeal by the workman the employers are entitled to an order for security where there is evidence that the workman will be unable to pay the costs if unsuccessful, notwithstanding the fact that the workman's lack of means is due entirely to the accident.20 And security for costs of appeal will be ordered, although the proceedings are being conducted for the applicant by a trade union.21 Upon the full amount of taxed costs being paid into court for the purpose of obtaining a stay while the employers appealed to the House of Lords, the court of appeal cannot make the workman's solicitors personally liable for their return in the event of a further appeal being successful.15 The ordinary rules of practice of the court of appeal as to ordering security for costs on appeal are applicable to an appeal under the workmen's compensation act.16 An application for security to the workman a larger sum than that which the employer offered. Williams V Caeponthren Colliery Co. [1913] W. C. & Ins. Rep. (Eng.) 155, 6 B. W. C. C. 122. Where the county court judge found that the applicant was entitled to full compensation for a period during which the master had paid him only partial compensation, and further found that the work man was entitled to a larger amount as partial compensation than the employer had offered to give him, it is incompetent for the judge to further find that the workman should pay the employer costs. Evans v. Gwauncaegurwen Colliery Co. [1912] W. C. Rep. (Eng.) 215, 106 L. T. N. S. 613, 5 B. W. C. C. 441. 10 Lancaster v. Midland R. Co. (1908; C. C.) 124 L. T. Jo. (Eng.) 439, 1 B. W. C. C. 418. 11 Where an injured workman was in receipt of 10 shillings a week as compensation, and the employers sought to reduce it 2 shillings, but the county court judge diminished it to 7 shillings, 6 pence, costs may be awarded against the employer. Connor v. Meads (1912) 5 B. W. C. C. (Eng.) 435. The court will not interfere with the exercise of the county judge's discretion in respect to awarding costs to the applicant, where the employer's answer was not an unconditional submission to pay a certain sum to the applicant, although the applicant did not recover more than the amount offered. Nicholson v. Thomas (1910) 3 B. W. C. C. (Eng.) 452. A different rule as to requiring security for costs appears to prevail in Ireland.22 pacitated, but made a suspensory award of 1 penny a week. Snell v. Gross, Sherwood & Heald [1913] W. C. & Ins. Rep. (Eng.) 141, 6 B. W. C. C. 242. A workman is not entitled to costs where he claimed compensation for total incapacity, and was awarded merely a declaration of liability. Derbyshire v. Hetherington (1914) 7 B. W. C. C. (Eng.) 677. 13 Beadle v. The Nicholas [1909] W. N. (Eng.) 227, 101 L. T. N. S. 586. 14 Gardner v. Cox (1910) 3 B. W. C. C. (Eng.) 245. 15 Chilton v. Blair (1914) 8 B. W. C. C. (Eng.) 1. 16 Hall v. Snowdon [1899] 1 Q. B. (Eng.) 593, 68 L. J. Q. B. N. S. 363, 80 L. T. N. S. 256, 15 Times L. R. 244, 47 Week. Rep. 322, 1 W. C. C. 114; Re Harwood [1901] 2 K. B. (Eng.) 304, 70 L. J. K. B. N. S. 746, 84 L. T. N. S. 857. 17 Stanland V. Northeastern Steel Co. (1906) 23 Times L. R. (Eng.) 1. 18 Shea v. Drolenvaux (1903) 88 L. T. N. S. (Eng.) 679, 19 Times L. R. 473, 5 W. C. C. 144. The earlier case of Hubball v. Everitt (1900) 16 Times L. R. 168, 5 W. C. C. 145, was distinguished on the ground that it was an exceptional case. 19 Rees v. Richard (1899) 1 W. C. C. (Eng.) 118. 20 Brine v. May (1912) 6 B. W. C. C. (Eng.) 460. Skeggs v. Keen (1899) 1 W. C. C. (Eng.) 119, holding to the contrary, must be considered as overruled. 21 McLaughlin v. Clayton (1899) 1 W. C. C. (Eng.) 116; Haddock v. Humphreys (1899) 1 W. C. C. (Eng.) 117. 12 It is error for the county court judge to direct the employers to pay the cost where he sustained the contention of the 22 It is contrary to the policy of the employers that the workman was not inca- workmen's compensation act to require the And the general practice relating to security for costs is not applicable to proceedings under the Alberta workmen's compensation act.23 5. Registration of memorandums of agreements. The word "genuine" is not to be confined to "admitted" or "proved" in fact. A memorandum of an implied agree- It extends to the meaning of "existing ment may be registered.24 But the coun- as evidencing an obligation enforceable. workman to give security for the cost of refusing to register an agreement which his appeal to the court of appeal. Hutchin-purported to provide for the payment to the son v. New Northern Printing & Weaving workman of full compensation during total Co. [1914] 2 I. R. 530, 48 Ir. Law Times, or "partial" incapacity, where it appeared 33, 7 B. W. C. C. 971, following the case of that the actual agreement was to pay comStormount v. Workman, C. & Co. decided pensation only during total incapacity. by the Irish court of appeal in 1899, re- Maundrell v. Dunkerton Collieries Co. (1910) ported in [1914] 2 I. R. (Ir.) 532, note. 4 B. W. C. C. (Eng.) 76. 23 Cessarini v. Hazel (1914) 7 B. W. C. C. (Alberta) 1059. 24 Jones v. Great Central R. Co. (1901) 4 W. C. C. (Eng.) 23. 25 The county court judge is not entitled to record a memorandum of agreement to pay compensation during total incapacity, and to continue until the same be ended, diminished, or increased, where there was no express agreement, either written or parol, although the employer had been pay ing full compensation to the workman for nearly a year. Hartshorne v. Coppice Colliery Co. (1912) 106 L. T. N. S. (Eng.) 609, 5 B. W. C. C. 358. [1912] W. C. Rep. 255. A workman in the employ of the London county council is not entitled to have an agreement recorded where, after an injury, the council paid the workman compensation merely in accordance with its practice to pay compensation to injured workmen for so long as their doctors testified as to the workman's incapacity. Godbold v. London County Council (1914) 111 L. T. N. S. (Eng.) 691, 7 B. W. C. C. 409. Where the employer objected to the recording of a memorandum of agreement to pay compensation, and thereafter, upon the commencement of arbitration proceedings by the employee, withdrew his objection to the agreement and it was recorded, and the county court judge dismissed the arbitration proceedings upon the ground that the dispute had been settled by agreement, the court of appeal sent the matter back to the county court judge upon the ground that he had not found that there was an agreement between the parties. Rees v. Consolidated Anthracite Collieries (1912) 5 B. W. C. C. (Eng.) 403, [1912] W. C. Rep. 205. 26 Shore v. The Hyrcania (1911) 4 B. W. C. C. (Eng.) 207; Lunt v. Sutton Heath & L. G. Collieries (1911) 4 B. W. C. C. (Eng.) 219; M'Geown v. Workman, C. & Co. (1911) 45 Ir. Law Times, 165; Phillips v. Vickers [1912] 1 K. B. (Eng.) 16, [1911] W. N. 193, 105 L. T. N. S. 564, 81 L. J. K. B. N. S. 123, [1912] W. C. Rep. 71, 5 B. W. C. C. 23; Halls v. Furness (1909) 3 B. W. C. C. (Eng.) 72; M'Carthy v. Stapleton-Bretherton (1911) 4 B. W. C. C. (Eng.) 281. The county court judge is justified in A workman is not entitled to have recorded an agreement which does not contain the words "during the period of total incapacity for work," which were contained in certain receipts which he had given for compensation, which receipts formed the basis of the agreement. Moore v. Pryde (1912) 50 Scot. L. R. 302, 6 B. W. C. C. 384. The county court judge is not justified in ordering a filing of a memorandum of agreement to the effect that the employer agreed to pay the workman a fixed sum from the date of the accident, no time limit being fixed, where the only agreement made by the employer was to pay the fixed sum so long as its own doctor certified that incapacity existed. Phillips v. Vickers [1912] 1 K. B. (Eng.) 16, 81 L. J. K. B. N. S. 123, 105 L. T. N. S. 564, 5 B. W. C. C. 23, [1911] W. N. 193, [1912] W. C. Rep. 71. In M'Lean v. Allan Line S. S. Co. [1912] S. C. 256, 49 Scot. L. R. 207, 5 B. W. C. C. 527, the Lord President said: "The real dispute is upon the words that occur after the provision as to payment during total disablement; namely, the words, 'the amount of any payment due during partial disablement to be settled hereafter.' In the document as signed the words are as I have read them; whereas, in the memorandum as proposed to be recorded, those words are replaced by the words 'during incapacity for work, or until such time as the same shall be ended, diminished, or redeemed in accordance with the provisions of the said act.' Now the appellant maintains that those words in the memorandum are really simply a more accurate and proper way of expressing what the words in the written agreement bore. The respondents, on the other hand, say no, and in particular maintain that it will make an important practical difference to them, because they say that the result of recording the memorandum as proposed will be that if the seaman partially recovers, they will be bound to pay if charged until they can get the payment reviewed in a process of review; and that, albeit that eventually decree in that process of review will draw back to the term of presenting the petition, yet never either presently or at a future date." 27 Where there is no evidence on which the county court judge may find that an agreement is not genuine, it must be registered, and thereafter the judge has no power to hear an application for compensation.28 If there is a variation not trivial between the memorandum of agreement proposed to be recorded, and the agreement actually entered into, it is not for the arbiter to decide whether the difference is so substantial as to prevent the agreement in the memorandum being considered genuine.29 Where the agreement was to pay the workman weekly compensation "in terms of the act," a memorandum of an agreement may be recorded to the effect that the employers agreed to pay compensation under the act "until the same is ended, diminished, redeemed, or suspended," since the words added were merely an expansion of the words, "in the terms of the compensation act."30 tion that the expenses were to be paid by the employer.31 The sheriff-substitute errs in refusing to record an agreement to pay compensation durin, incapacity as not genuine in that the agreement was to pay only during total incapacity, where the main evidence of the agreement was receipts which stated that the payments were "accepted as the amount payable under the workmen's compensation act 1906."32 As to the effect of an agreement to oust the power of the arbitrator, see ante, 79. nor Upon the workman's application to record an agreement, the county court judge is not authorized to decline to record the agreement, on the ground that the applicant is not a workman,33 upon the ground that he had not met with an accident,34 nor upon the ground that the amount to be paid was too high.3 35 A workman is entitled to have a A memorandum is genuine memorandum of agreement recorded also as to be entitled to be recorded al- though the employer, after paying full though it omits to mention the stipula-compensation for a number of weeks, theless they may find themselves in this unpleasant position, that during the time the case has taken to decide they have had to pay the full sum, and that sum they will never get back; whereas if the agreement was recorded in the precise terms in which it was written they could not be charged to pay during the period after they had alleged that total incapacity had ceased; or rather, to put it more accurately, that if a charge were presented against them, they would be able to suspend it, and therefore would not be in the position of having to pay the money that they eventually would not be able to get back. Now, I do not think, although we have had a discussion on the question, that we need decide at present whether the one set of words is exactly the same as the other, or is not. The only thing we can decide to-day is, what is the sheriff's duty when a memorandum is produced to him for the purpose of being recorded and the genuineness of it is disputed? Now, with regard to this matter, the sheriff is not really acting as arbiter at all; he is acting in a semiministerial capacity." 27 Buckley, L. J., in Popple v. Frodingham Iron & Steel Co. [1912] 2 K. B. (Eng.) 141, 81 L. J. K. B. N. S. 769, 106 L. T. N. S. 703, 5 B. W. C. C. 394. 28 Fox V. Battersea Borough Council (1911) 4 B. W. C. C. (Eng.) 261. 29 A workman is not entitled to have a memorandum of agreement recorded against the opposition of the employer where it did not contain the phrase "during the period of total incapacity for work," which was contained in several receipts for compensation which the master had previously given him on account of the same injury. Moore v. Pryde [1913] S. C. 457, 50 Scot. L. R. 302, [1913] W. C. & Ins. Rep. 100, 6 B. W. C. C. 384. 30 Babcock v. Pearson [1913] S. C. 959, 50 Scot. L. R. 790, [1913] W. C. & Ins. Rep. 430, 6 B. W. C. C. 841. 31 M'Laughlin v. Pumpherston Oil Co. (1914) 52 Scot. L. R. 48, 8 B. W. C. C. 354. 32 Scott v. Sanquhar & K. Collieries (1915) 52 Scot. L. R. 391, 8 B. W. C. C. 405. 33 The county court judge cannot refuse to record an agreement entered into by the workman and the employers on the ground that the applicant is not a workman within the meaning of the act, since that question has been settled by the agreement. Goodsell v. The Lloyds [1914] 3 K. B. (Eng.) 1001, 30 Times L. R. 622, 83 L. J. K. B. N. S. 1733, 7 B. W. C. C. 631. 34 An agreement may be registered although at the time when it is made the employers did not admit liability under the act, having taken the position that the pursuer had not met with an accident. M'Guire v. Paterson [1913] S. C. 400, 50 Scot. L. R. 289, [1913] W. C. & Ins. Rep. 107, 6 B. W. C. C. 370. 35 The sheriff's clerk, before filing a memorandum of agreement, is not bound to ascertain the facts connected with the accident and the probable duration of the injuries resulting therefrom. (Scot.) Ibid. Objections by the employers that an agreement had been made under essential error as to the rights of parties under the act, and that the sum agreed to be paid was more than half of the workman's average weekly earnings, are irrelevant as answers to a petition for warrant to register an agreement which is not denied. Macdonald v. Fairfield Shipbuilding & Engi had offered the workman light labor ating more than before his injury, where the same pay, although it was admitted he is likely to be incapacitated from time that the laborer had not entirely re- to time in consequence of his injury.42 covered.36 An agreement which is no longer in force cannot be recorded; as where the workman had signed a final discharge of his claim,37 or where the incapacity had ceased.38 It would appear that a contrary decision was rendered in an early case in the court of appeal, and also in the second division in the court of sessions.39 But these decisions were said in the judgment in the Popple Case to be distinguished probably by the facts in the cases; if not, the conclusions reached were disapproved.40 It was also held in a comparatively early case that the memorandum of agreement to pay compensation should be registered on application, although it had been terminated by a subsequent agreement.41 The workman is entitled to have the memorandum of agreement registered, although he has recovered and is earn neering Co. (1905) 8 Sc. Sess. Cas. 5th series (Scot.) 8. 36 Keevans v. Mundy [1914] S. C. 525, 2 Scot. L. T. 350, 51 Scot. L. R. 462, 7 B. W. C. C. 883. 37 The arbitrator can competently determine the validity of an alleged discharge, in an application to record a memorandum of agreement. Hanley v. Niddrie & B. Coal Co. [1909-10] S. C. (Scot.) 875. 38 In Popple v. Frodingham Iron & Steel Co. [1912] 2 K. B. (Eng.) 141, 81 L. J. K. B. N. S. 769, 106 L. T. N. S. 703, [1912] W. C. Rep. 231, 5 B. W. C. C. 394, the court of appeal held that an agreement to pay compensation during total incapacity could not be recorded after the total incapacity had ceased. Cozens-Hardy, M. R., apparently took the view that Coakley v. Addie [1909] S. C. 545, 46 Scot. L. R. 408, 2 B. W. C. C. 437, infra, was in some way distinguishable; but in his discussion of the case he does not make it clear what the distinction is, and Buckley, L. J., stated expressly that he was not able to agree with the court in the Coakley Case. No warrant to record an agreement should be granted where the agreement sought to be recorded has been superseded and brought to an end by the report of a referee appointed by a joint letter, that incapacity had ceased. McNaughton v. Cunningham [1909-10] S. C. 980, 47 Scot. L. R. 781, 3 B. W. C. C. 576, 577. A memorandum of agreement to pay compensation is barred from being recorded where the condition of the workman was submitted to a medical referee and he reported him fit for work. (Scot.) Ibid. Under sched. 2, § 9, subs. B, where a workman has returned to work at the same or better wages than before the accident, but is subsequently dismissed because of a Proceedings for the recording of a memorandum of agreement to which a minute of objection has been lodged, and proceedings for arbitration for compensation in the same case, cannot be joined.43 Where a verbal agreement for the payment of a certain weekly compensation was entered into between the master and the injured workman, it was held that this agreement, after having been recorded, fixed the rights of the parties until another agreement should be recorded. It is not displaced by a subsequent unrecorded agreement.44 question whether one agreement has been superseded by another is to be determined in an application for review, and not to be determined in a suspension in the supreme court; 45 so also is the question whether or not incapacity has ceased.46 The reduction of the staff, and not because of incapacity, he cannot have the unrecorded agreement under which he had been receiving compensation recorded. Matthews v. Baird [1910] S. C. 689, 47 Scot. L. R. 627. 39 The only duty of the registrar of the county court under paragraph (8) is to ascertain whether the memorandum actually represents the agreement of the parties; he cannot refuse to record it simply because changed conditions would not entitle the workman to the amount of compensation fixed. Blake v. Midland R. Co. [1904] I K. B. (Eng.) 503, 73 L. J. K. B. N. S. 179, 68 J. P. 215, 90 L. T. N. S. 433, 20 Times L. R. 191. See also Coakley v. Addie [1909] S. C. 545, 46 Scot. L. R. 408, 2 B. W. C. C. 437. 40 In the Blake Case the agreement was for "payment during total or partial incapacity;" and Buckley, L. J., pointed out that as long as incapacity of any kind existed, there could be no objection to recording the agreement. In the Coakley Case it is possible that the judge had in mind the possibility of incapacity recurring. 41 Keeling v. Eastwood (1904) 116 L. T. Jo. (Eng.) 595, 6 W. C. C. 167. 42 Cammick v. Glasgow Iron & Steel Co. (Ct. of Sess.) 4 F. 198, as cited in 2 Mews' Dig. Supp. 1578. 43 Arniston Coal Co. v. King [1913] S. C. 892, 50 Scot. L. R. 685, [1913] W. C. & Ins. Rep. 388, 6 B. W. C. C. 826. 44 Fife Coal Co. v. Davidson [1906-07] S. C. (Scot.) 90. 45 Fife Coal Co. v. Lindsay [1908] S. C. 431, 45 Scot. L. R. 317, 1 B. W. C. C. 117. 46 Where under an agreement a workman has received weekly payments of compensation, which were varied or discontinued by employers, and he afterwards records Two cases involving the construction | terested" within the meaning of the of particular agreements will be found phrase as used in schedule II. 9, of the in the note.47 workmen's compensation act.49 Whether or not an approved society is a "party interested" within the meaning of this paragraph of schedule 2 was raised, but not decided, in a Scotch case.50 Schedule II. (9) (b) does not give the arbitrator the discretion to refuse to record an agreement in a case where the workman has returned to work and is earning the same wages as before the accident; he should record the memorandum or agreement and attach such conditions thereto as, in the circumstances, he thinks just.48 6. Proceedings by “parties interested." The court of appeal has held that an approved society under the national insurance act of 1911 is not a "party ina memorandum of that agreement and charges for payment, the court, with regard to payments due for the period subsequent to recording, will not suspend the charge, the employers' remedy lying in an application for review. Lochgelly Iron & Coal Co. v. Sinclair [1909] S. C. (Scot.) 922. 47 An agreement between the employer and the injured workman that the employer is to pay full compensation until a certain day, and that thereafter he is to furnish the workman light work at his prior wages, and that should the workman "be unable to do such light work or other work at any time hereafter by reason of the injuries received as aforesaid, his claim for compensation is to revive," is terminated upon the recurrence of his total incapacity, and upon the subsequent recovery of capacity to do light work he must rely upon the act, and not upon the contract, and consequently is not entitled to receive as compensation the full difference between his present wages and the amount received prior to his injury. Branford v. North Eastern R. Co. (1910) 4 B. W. C. C. (Eng.) 84. A workman who, by an unrecorded agreement, received compensation for over a year, and was subsequently employed for over seven years at light labor, the payments ceasing upon his being so employed, is not thereafter, upon the recurrence of total incapacity, estopped from filing an ordinary claim for compensation. Dempster v. Baird [1908] S. Č. 722, 45 Scot. L. R. 432, 1 B. W. C. C. 62. The view taken by the court was that the agreement having been supplanted by an agreement to pay wages, which agreement continued for over seven years, could not be held to be in force, and consequently the remedy of the workman was to bring an ordinary claim for compensation. Upon a second appeal, it was held that he was barred from claiming any compensation in respect of his partial incapacity during the seven years. [1909] S. C. 127, 46 Scot. L. R. 119. 48 Scott v. Sanquhar & K. Collieries (1915) 52 Scot. L. R. 391, 8 B. W. C. C. 405. 49 Bonney v. Hoyle [1914] 2 K. B. (Eng.) 257, 83 L. J. K. B. N. S. 541, 136 L. T. Jo. 376, 30 Times L. R. 280, 58 Sol. Jo. 268, [1914] W. N. 43, 12 L. G. R. 358, 110 L. T. N. S. 729, 7 B. W. C. C. 168, holding that such society has no right to intervene and object to the recording of a memorandum of agreement. 50 Baird v. Ancient Order of Foresters [1914] S. C. 965, 51 Scot. L. R. 819, 7 B. W. C. C. 943. In this case it was held that it is error for the sheriff-clerk, upon the lodging of an agreement between the employer and an injured workman, whereby the weekly payments were to be redeemed by a lump sum, and the subsequent lodging by an approved society of a minute objecting to the recording of the memorandum of agreement upon the ground that the sum was inadequate, to hand on the minute to the sheriff, as it was the duty of the sheriff-clerk to consider the information tendered him, and then for him, if he were satisfied, to prepare and lodge a minute setting forth all his reasons, so that the memorandum could then be dealt with as an application for arbitration on the question raised in the sheriff-clerk's minute. 51 Where a workman received an injury for which he was paid compensation for three weeks, and thereafter returned to work for about six months, when he became unwell and underwent an operation, and for about three months received insurance from an approved society of which he was a member, and informed the society that, in his view, his illness was not the result of the prior accident, and that he did not propose to take proceedings against the employer for compensation, it is not competent for the approved society to take them in his name, since the workman has not unreasonably refused or neglected to take such proceedings. Rushton v. Skey [1914] 3 K. B. (Eng.) 706, [1914] W. N. 281, 137 L. T. Jo. 212, 30 Times L. R. 60, 83 L. J. K. B. N. S. 1503, 111 L. T. N. S. 700, 58 Sol. Jo. 685, 7 B. W. C. C. 508. A workman does not unreasonably refuse nor neglect to take proceedings for recovery of compensation himself, so as to entitle an approved society to take pro |