Scottish Court of Session Decisions

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Cite as: [1835] CA 13_544

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SCOTTISH_Shaw_Court_of_Session

Page: 544↓

Smellie

v.

Cochrane. No. 170.

Court of Session

1st Division D.

Feb 25 1835

Ld. Corehouse, Lord Balgray, Lord Gillies, Lord President, Lord Mackenzie.

Margaret Smellie, Pursuer.— D. F. Hope— Patterson. John Cochrane, Defenders.— Rutherfurd— Sandford.

Subject_Triennial Prescription—Master and Servant.—

Circumstances in which held, that a claim of remuneration was substantially a claim for wages as a housekeeper or servant; and, therefore, fell under the triennial prescription, though there had been no agreement as to the remuneration.

In 1831, Miss Margaret Smellie, residing at Dalmeny Garden, raised an action against her brother-in-law, John Cochrane, farmer in Water-stone, setting forth that he had applied to her “to go to Linlithgow, as a housekeeper or governess, for the purpose of taking charge of his children, while attending the schools and receiving their education at that place: That, in this view, a house was accordingly taken at Linlithgow, which was kept and superintended by the pursuer from the 6th day of October, 1820, down to the first day of August, 1826: That, during this period, the pursuer had several of the defender's children in-trusted to her charge, and to whom she rendered every service in hers power with the utmost assiduity and attention: That there was no specific agreement made with the pursuer at the time she entered into the said engagement, nor during its currency, in regard to the amount of salary or remuneration to be paid to her by the said defender for her services before-mentioned: That, considering the trouble and importance of the charge, as well as the benefit derived by the defender from having his children intrusted to the charge of one in whom he could confide, and whose sole study, daily and nightly, was the promotion of their interest and comfort, the pursuer considers that £15 Sterling per annum, during the period aforesaid, will afford even an inadequate remuneration for the services performed.”

The pursuer concluded for £85, 5s. 6d., being remuneration at the rate of £15 per annum till 1826.

The defender pleaded that the claim was substantially that of a governess or housekeeper, for a salary: and if the alleged debt was of this sort, it fell, from its own nature, under the triennial prescription, and could not be prevented from doing so, by the circumstance of no sum of wages having been fixed.

The pursuer answered, that her claim was not liable to the triennial prescription, because there was no definite agreement as to the sum of remuneration to be allowed for her services, or the term of paying such remuneration, so that no presumption of payment could arise as in the ordinary case of fixed termly wages; and farther, she averred that she had contributed the use of household furniture to the house at Linlithgow; that she had given private instructions to the children in reading and writing; had repaired their clothes; and to a great extent washed, dressed, cooked, and performed other household services.

The Lord Ordinary “found that the triennial prescription applies to the claim of the pursuer: Sustained the defence of the said prescription accordingly: Found that the said claim can only be proved by writ or oath, and allowed the pursuer to give in a Minute, stating in which of these modes she undertakes to prove her claim.” ^*

_________________ Footnote _________________

^* “ Note.—The pursuer states in her condescendence, that she was engaged by the defender, in 1820, to go to Linlithgow to take charge of his children as a housekeeper, and she concludes for the sum of L.85, 5s. 6d. in name of salary or remuneration for her services in that capacity. More than three years elapsed after her services as housekeeper ceased, before the present action was brought. The Lord Ordinary is clearly of opinion, therefore, that the triennial prescription is applicable to this claim under the express words of the statute 1579. The pursuer says, that it is not libelled that a specific fee was fixed as a remuneration for these services, nor was the term settled at which the wages were to be payable. But the Lord Ordinary sees nothing either in the words or purvieu of the statute, nor in the authority of the text writers, nor in the decisions of this Court, which leads him to think that either of these circumstances affects the plea of prescription.

“It is true, that, in the case of the pursuer against Gillespie, 23d November, 1833, ¹ which occurred precisely in the same circumstances, the Court allowed a proof prout de jure. But the Lord Ordinary can account for this judgment only from the circumstance mentioned on the Bench, that the defender, whether from mistake or otherwise, allowed the defence of prescription to drop out of his pleas on the record. As neither the constitution nor subsistence of this debt is admitted here, it is thought that the only mode of proof competent is by the writ or oath of the defender.”

¹ (Ante, XII. 125.)

The pursuer reclaimed.

Lord Balgray.—On considering what the relation was between the pursuer and defender, out of which the claim of debt has arisen, I think the triennial prescription applies. The claim is just for a sum of wages for service. It may be true that the agreement as to the remuneration for the pursuer's services was not specific, but that does not affect the nature of the claim, but merely the extent of it. The pursuer was not the less a servant though the agreement was indefinite, and her claim is just a demand of a reasonable sum of wages. I think it liable to the triennial prescription.

Lord Gillies.—I concur. I think the debt claimed is of the nature expressed by Lord Balgray, and therefore falls under the triennial prescription.

Lord President.—I do not consider the case to be free from doubt. In one sense the pursuer may be viewed as a species of servant, in another she may be regarded as an institor. The office which she performed does not exactly fall under any common class of service, and as she contributed the use of furniture to the house, I think her claim can scarcely be viewed in the light in which it has been regarded by your Lordships. It seems to me to be a question of some nicety, whether the triennial prescription applies.

Lord Mackenzie was absent.

The Court adhered.

Solicitors: Wotherspoon and Mack, W.S.—J. B. Watt—Agents.

SS 13 SS 544 1835