Turpis causa. - Sale to a White Bonnet at a Roup. - Obligation not to oppose reduction of a Verdict of Fatuity. - Transacting a Crime. - Transacting Church Penance. - British Subject purchasing a Captured British Ship. - Combination of Offerers at a Sale. - Combination to raise the rate of Wages. - Combination against receiving Money of a particular Coinage. - Pactum contra utilitatem.
Barr v. Carr
Date: 21 January 1766 Case No. No 97.
An unlawful combination among the journeymen weavers in the town of Paisley found null, so as not to found an action.
Click here to view a pdf copy of this documet : PDF Copy
The journeymen weavers in the town of Paisley, emboldened by numbers, began with mobs and riotous proceedings, in order to obtain higher wages. But these ouvert acts having been suppressed by authority of the Court of Session, they went more cunningly to work, by contriving a kind of society termed the defence-box; and a written contract was subscribed by more than six hundred of them, containing many innocent and plausible articles, in order to cover their views, but chiefly calculated to bind them not to work under a certain rate, and to support, out of their periodical contributions, those who, by insisting on high wages, might not find employment. Seven of the subscribers being charged upon the contract for payment of their stipulated contributions, brought a suspension; in which it was found, That this society was un unlawful combination, under the false colour of carrying on trade, and that the contract was void, as contra utilitatem publicam.
Fol. Dic. v. 4. p. 35. Sel. Dec. No 238. p. 312.*** This case is reported in the Faculty Collection.
Certain journeymen weavers of Paisley framed a contract of co-partnery, bearing to be for carrying on a joint trade of manufacturing and selling silk and linen goods, and containing the following articles: That the number of partners should not be less than 600; that the affairs of the company should be managed by a preses and 19 directors, annually chosen, and other officers; that each partner should be 2s. at the commencement of the company, and a small monthly sum during its continuance, which was declared to be for 12 years, from 8th May 1764; that no dividend of the profits should be made till the lapse of that period; that, upon calling a general meeting of the company, the rate of wages might be fixed, under which no member should be at liberty to work; that the shares should be transferable under certain regulations; that the directors should be at liberty to admit any number of additional partners upon certain conditions.
In the space of a few days, the contract was signed by more than 600 persons; and the co-partnery commenced under the denomination of the Universal Trading Company of Paisley,
At length some of the members refused to pay up their contributions, and being charged upon the contract, insisted in a reduction of it, as being no other than a combination of manufacturers to raise their wages; and, therefore, illegal both at common law and by statute.
Pleaded for the company, The institution was designed for the laudable purpose of carrying on a joint trade with the savings of their industry, which separately could not be turned to account by the individual members; and there is no law in Scotland which restricts the number of partners in a trading company.
It was not for the general interest of the company to increase the rate of wages; because, though part of the members were journeymen weavers, many of them were of different professions, some of them manufacturers, who had occasion to employ journeymen. And it was not in their power to do it, because the dealings of the company were not extensive enough to enable them to employ any considerable number of journeymen, nor their stock large enough to maintain them without working, should they be refused employment from the other manufacturers.
Answered, The number of partners, already above 600, and which may be increased to thousands; the employment of the partners, almost all of them journeymen weavers, though a few perhaps may be masters of a loom or two, which they let out for hire; and the trifling amount of their contributions, are so many proofs, that the co-partnery could not be intended for carrying on a trade, or meant for any other purpose, than as a cover to an illegal combination for increasing the rate of wages. Indeed, by an expresss clause of the contract, the partners are taken bound not to work under the rates which shall be fixed by the directors.
An instance of the same kind occurred in 1762, in the case of the Woolcombers of Aberdeen, who had entered into a society, under pretence of raising a fund for the support of the aged or disabled persons of their trade; but, as there was reason to believe that there were different purposes at bottom, the Court found, “That such combinations of artificers, whereby they collect money for a common box, inflict penalties, impose oaths, and make other by-laws, are of dangerous tendency, subversive of peace and order, and against law; and, therefore, prohibited and discharged the woolcombers to continue to act under such combination or society for the future, or to enter into any such new society or combination.”
Reference was also made to the statute 6th Geo. I. cap. 18. § 18, as prohibiting the acting as bodies corporate, or raising transferable stocks without legal authority; though it may be doubted how far that statute, commonly known under the name of the Bubble act, is applicable to this question.
“The Lords found, that the contract and agreement in question was not intended for carrying on a manufacture, but is an illegal combination, and of dangerous tendency to society. And therefore found the reasons of reduction relevant and proven, and reduced and decerned accordingly; and found the defenders liable in the expense of extract.”
Reporter, Gardenston.Act. Wight.Alt. H. Dundas.Clerk, Ross.
Fac. Col. No 30. p. 248.
