Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRIVILEGED DEBT.
Subject_3 Wages, or a yearly salary to the overseer of an extensive distillery, found not a privileged debt.

William Ridley
v.
Trustees of Haig and Company

Date: 3 February 1789

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[Faculty Collection, X. 101; Dictionary, 11,854.]

Gardenston. The principle is just, that privileges are not to be extended. Custom has given a preference to menial servants, though I do not see a good reason for that. The distinction in the case of Melville against Barclay was on account of universal practice, which I and all sheriffs know. Were the judgment in this case to go for the servant, it would be a great alteration in the law. By the same rule the preference might be extended to merchants' clerks.

Swinton. I remember well the case of Barclay. The Court was well pleased that, on inquiry, the practice turned out to be so general, because there was thought to be justice in it. I think that this case ought to be judged on the same principle.

Eskgrove. I see no practice extending the case of Barclay to other cases. That case did not rest on principle alone; but there was the practice of the inferior courts, where questions concerning servants' wages are most commonly agitated. Here the Court is called upon to extend a supposed principle of expediency much beyond any practice.

Justice-Clerk. The general principle of the law of Scotland is against privileges and preferences; all such are stricti juris. There might be as good reason to give preferences in the case of bankruptcy as the case of death: but the Court would not listen to that in the case of Barclay; they required practice, and on that practice they proceeded.

President. Were we to give way to this claim, it would have the effect of altering the law of Scotland in a very important particular. Property is transferred when fides habita est de pretio: so here personal labour was transferred when fides habita de mercede solvenda.

Monboddo. The case of Barclay went upon constant practice, which is equal to law. Every thing that a merchant earns is by the labour of his clerks, and yet they have no preference.

On the 3d February 1789, “The Lords repelled the claim of preference.”

Act. Ch. Hope. Alt. A. M'Conochie. Reporter, Monboddo.