A coalier working without paction at a coal to which he was not adscriptus, might desert it when he pleased.
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James Gray of Dalmarnock, proprietor of a coal-work near Glasgow, gave it up some years ago, and allowed his coaliers to go to what masters they pleased. Six of them, at length, with consent of James Gray, settled at a coal-work belonging to Robert Bogle of Shettlestone; where some of them remained less, and others more, than a year, when they were enticed away by Robert Cross of Barrachny to his coal.
James Gray, notwithstanding the dismission of his coaliers, had been in the regular use of requiring them back annually from the masters they worked with, in order to preserve his right to them, in case he should ever set up his coal again.
Mr Bogle, upon the desertion of the coaliers, as above, reclaimed them from Mr Cross, alleging, that he had a preferable right to them, in respect of their haying been fixed to his coal with consent of the former proprietor.
Answered for Mr Cross, The laws respecting coaliers give this right of reclaiming only to the original master. But here Gray is the master, and Bogle has the enjoyment of them only pro tempore, by his allowance. 2do, At any rate, the right of reclaiming belongs only to that master who has been in possession of the coalier for year and day; and therefore the pursuer cannot reclaim such of the coaliers as have not served him for that time.
‘The Lords found the pursuer not entitled to recover any of the coaliers in question.’
Act. Miller, Hamilton-Gordon.Alt. Dav. Dalrymple.
Fol. Dic. v. 3. p. 136. Fac. Col. No 104. p. 186.*** Lord Kames reports the same case:
James Gray of Dalmarnock, having resolved to discontinue his coal-work for some time, permitted his coaliers, till he should have again occasion for them, to seek for employment in the neighbourhood. Six of them accordingly were hired by Bogle of Shettlestone, and entered to his coaliery. But after having wrought there some months, they left that work for another coaliery in the neighbourhood belonging to Cross of Barrachny. Bogle of Shettlestone, apprehending himself to have the benefit of the act 11. P. 1606, required back the coaliers, and brought an action before the Sheriff for the penalty of L. 100 Scots for each of them, in terms of the statute. The following defences were offered. 1st, That the six coaliers did not belong to the complainer's coaliery, but to that of James Gray of Dalmarnock, and therefore, that James Gray only was entitled to make the requisition. 2dly, Independent of Mr Gray's right, that the complainer was not entitled to the privilege of the statute, in regard the six persons claimed had not served at his coaliery for year and day, and therefore were not his property, but at full liberty to hire themselves where they thought proper. The Sheriff having pronounced an interlocutor, ‘Finding that the possession had by the pursuer of the coaliers libelled, not being for the space of year and day, does not make him proprietor of these coaliers, so as to found him in a claim for the penalties imposed by the statute,’ the cause was advocated, and an interlocutor was pronounced by the Court of Session, finding, ‘That Mr Bogle the pursuer is entitled to recover the coaliers in question, as the master whom they last served; and decerning the defender to restore them accordingly; but assoilzieing from the penalties in the statute.’ This interlocutor goes upon the supposition, that a coalier working at a coal to which he is not adscriptus, cannot however desert that coal at pleasure, but may be reclaimed by the proprietor of the coal; and the President endeavoured to support this proposition by the words of the statute above mentioned, giving power to the master whom the coalier last served to require him back within year and day. But, upon a reclaiming petition and answers, this interlocutor was altered, and the Sheriff's interlocutor was adhered to, finding that the pursuer had no claim to the coaliers in question.
It occurred to me at advising, that the statute could not intend the privilege of reclaiming a coalier under a penalty to any but to the proprietor of the coaliery to which the coalier is bound for life; because such privilege ought not to be given to any other, as it would be absurd to give any man a power of reclaiming a coalier who is not bound to him by law or paction.
The clause giving power to the master whom the coalier last served to require, clearly means the master to whose coaliery the coalier was last a slave; and it may well happen that a coalier may be successively a slave in different coalieries. The coaliery to which he is first a slave runs out; he is thereby free. For a man cannot be a slave in a coaliery which no longer exists. The coalier enters to another coaliery, which also running out, he may be successively a slave to many. What time may be requisite to enslave him to a new coaliery seems a little uncertain. My reason for fixing upon year and day is the following. A native bondman is free, if suffered to remain quietly in a town for a year and day, Reg. Maj. L. 2. cap. 12, § 17. Therefore a coalier should be also made free, if his master demand him not back within year and day, supposing it to be known where he is. The above mentioned act appears to proceed upon this footing; for the requisition is confined to the year and day; and if this be right, the master has not even a rei vindicatio after year and day.
