Scottish Court of Session Decisions

On 7th April, 1837, a general strike took place among the associated cotton-spinners of Glasgow and its neighbourhood, which continued for some time thereafter. The affairs of the association were managed by a committee, upon whose order furnishings of meal and other necessaries were made to the members. The same committee acted from the commencement of the strike till 29th July following, when they were arrested on a criminal charge, ^* and a new committee was appointed. It was provided

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^* They were subsequently brought to trial on an indictment charging them with criminal acts arising out of this strike. See Swinton's Report of the Cotton-Banners' Trial.

in the articles of the association that the committee should not allow the funds at any time to fall below £1000; but, towards the end of 1837, upwards of £5000 of debt had been incurred, and which there were no means of liquidating, except by assessing the members of the association. In regard to payment of the debt, difficulties occurred, many members proposing to quit the associational together, and refusing to pay the instalments laid upon them by the committee, and this after a great proportion of the spinners had returned to work with their employers.

In these circumstances, Andrew Thomson, victualler in Glasgow (one of the creditors), raised action in the Court of Session against “the Association of Operative Cotton-spinners of Glasgow and neighbourhood,” and Thomas Graham and others, individually (being nearly 1100 in number), members or partners thereof, setting forth, that the defenders were indebted to him in the sum of £650, “being the price of meal and bread furnished by him to the members of the association at their request, and for their use and behoof, and on the order of the committee of management,” the members whereof had accepted accordingly to the pursuer two promissory-notes (produced), one for £215, dated 27th November, 1837, payable at three months, and the other for £435, dated 1st January, 1838, payable at twelve months; also in the sum of £210, being the price of meal, furnished in the same way by one Baird, whose right the pursuer had acquired, and had a bill for the said sum (also produced), dated 7th July, 1837, and payable at five months, accepted to him by the members of the committee; and concluding to have the “association, and the various persons before named and designed, members or partners thereof, and as individuals,” ordained to make payment of the foresaid sums, amounting in whole to £860.

The summons was dated and signeted 25th April, 1838. One messenger was employed to execute it against the several defenders, of whom some were furth of Scotland, which occupied from 26th April to 22d May. On the 29th April arrestments were used against about 120 of the defenders, in the hands of their respective masters; another set were laid on, upon the next pay-day (8th May), against the same parties, and they were repeated at every pay-day thereafter. The following is a copy of one of these arrestments, which were all alike: “I, John M'Callum, messenger-at-arms, by virtue of letters of arrestment, proceeding upon a summons dated and signeted the twenty-fifth day of April last, eighteen hundred and thirty-eight years, raised at the instance of Andrew Thomson, victualler, Bridgeton of Glasgow, against Robert Crawford, William Shanks, William Hining, Donald M'Murphy, Joseph Blisdale, Edmund Hardie, John M'Arthur, John Davidson, John Dunsmore, and William Dick, all members or partners of the society or association, designated ‘The Association of Operative Cotton-spinners, Glasgow,’ and as individuals, all operative Cotton-spinners, and all now or lately in the employment of Messrs Peter Bogle and Co., Cotton-spinners, Main-street of Bridgeton of Glasgow, and all now or lately residing in Bridgeton of Glasgow, or neighbourhood thereof, in her Majesty's name and authority, lawfully fence and arrest in the hands of you, the said Messrs Peter Bogle and Co., the sum of eight hundred pounds sterling, more or less, due and addebted by you to the said Robert Crawford, &c.; together also with all goods and gear, debts, sums of money, or any other effects whatever, lying in your hands, custody, and keeping, pertaining, or any manner of way belonging to the said Robert Crawford, &c., or to any person or persons for their use and behoof, all to remain under sure fence and arrestment, at the instance of the said com-plainer, until sufficient caution be found acted in the books of Council and Session, that the same shall be made furthcoming to the complainer, as accords of law, with certification. This I do,” &c.

After raising the summons, the pursuer had communication with certain of the defenders, including some of those against whom the diligence had been used. The following document was in May subscribed by a portion of the defenders: “May, 1838—We, the subscribers, lately members of the Operative Cotton-spinners' Association of Glasgow and neighbourhood, do hereby agree, that while occupying wheels, we shall, by instalments of 2s. 6d. per fortnight, pay our proportions of the present debt against the Association, and which debt amounts to £5920; and we agree to continue this instalment as per above, until the debt is paid.”

Thereafter Shanks and others, the parties against whom arrestments had been used, presented a bill “for letters of loosing arrestment to the extent of the complainers' wages due to them by their respective masters, without caution or consignation; or at any rate upon juratory caution, or at any rate to the extent of the sums that may be necessary towards the complainers' subsistence;” stating as their reasons, 1st, That no debt contracted to Thomson by the Committee could, in the circumstances, be the foundation of a valid claim in law even against the members of Committee, and at all events not against the complainers; 2d, That the sums arrested as to each of the complainers, in the hands of their respective employers, are their fortnightly or weekly wages, which, being alimentary and necessary for their subsistence, both at common law and by the 1st Victoria, c. 41, § 7, ^* are not arrestable; 3d, That the complainers had been kept in ignorance of the grounds of the claim; 4th, That if the action concluded against the members of the Association in solidum, it was groundless, and if against them per capita, the use of arrestment against so many defenders, for £800 each, was nimious and oppressive.

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^* It is there provided, “That wages of labourers and manufacturers shall, so far as necessary for their subsistence, be deemed alimentary, and in like manner as servants' fees, and other alimentary funds, not liable to arrestment.”

Thomson, in answer, contended,—That in an application for loosing arrestment, it was incompetent and irrelevant to enter upon the grounds of action, against the regularity of which no objection was stated; but, as a creditor of the association, he had an undoubted legal claim against the office-bearers and individual partners for furnishings made for the general or individual behoof of the society and its members, and there were no circumstances in the present case to prevent him resorting to the diligence of arrestment in security of that claim; that without insisting upon the diligence being kept up, so as to extend to what was absolutely necessary for the complainers' subsistence, the arrestments ought to be kept up so as to secure what sums of wages were respectively over and above an allowance of 8s. or 10s. a-week, for each person, more especially since the present claim was for an alimentary debt.

The Lord Ordinary (29th May), remitted the proceedings to the Sheriff of Lanarkshire to peruse the same, and to enquire into the circumstances of the defenders, and report to the Lord Ordinary what weekly allowance from the wages earned by them may be necessary for the aliment of the different classes of defenders. The following minute was subscribed on 7th June by four of the parties to the bill for loosing arrestment, and seven others in similar terms, were subscribed by eight other parties, also in June:—“The said defenders hereby abandon all opposition to the pursuer's claim, upon the express understanding and agreement that he shall not proceed against the present defenders, by attaching their wages, or otherwise distressing them by decree under this action, so long as the defenders shall regularly and punctually pay off his claim, and the other debts contracted by the Association, bona fide, at the rate of 1s. 6d. per fortnight, which an individual appointed by the creditors shall uplift, in order that it may be fairly applied towards payments of the debts, independently of any sum to be collected by the Association for the puposes thereof. But reserving to the pursuer the full benefit of his prosecution, in order to enable him to compel a settlement from others, and from ourselves, in the event of our failure to pay said instalments. And further, we hereby withdraw and abandon the petition presented to the Court of Session, at our instance, against the said Andrew Thomson, craving that the arrestments used at his instance against us, on the dependence of the said action, may be loosed and discharged. And we consent that the said application shall be dismissed.”

In obedience to the above remit, the Sheriff of Lanarkshire returned a full report, of which the substance is given in the note below. ^*

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^* Report by A. Alison, Esq.—“Two points are to be attended to: 1st, The proportion of wages which, in an ordinary case of debtor and creditor, should be set apart to the debtor as an alimentary provision unattachable by arrestment, in consequence of the clause in the statute of 1st Victoria, c. 41; 2d, Whether, in the circumstances of the present case, any different or more favourable rule for the workmen should be adopted?

“1. By the 1st Victoria, c. 41 (Sheriff's Small Debt Act), every summons issued by the Sheriff-clerk, must contain, in gremio, a warrant to arrest in security, in the mean-time, the defender's funds wherever they can be found; the result of which is, that whenever a summons is taken out, and often before it is served upon the defenders, an arrestment is laid on in the master's hands, to the extent of £8, 6s. 8d., greatly exceeding the amount of the wages; and the consequence generally is, that the workman's whole wages are locked up in his master's hands, until a decree is obtained in an action of furthcoming, fixing the amount to be held subject to the arrestment, and this may not be obtained for several months. This state of matters is a serious evil to the working classes and their families, and for which the act provides no effectual remedy. To palliate the inconvenience in so far, the reporter adopted it as a rule, both in the Ordinary and Small Debt Court, and which has been in operation since the end of 1837, that 12s, a-week was to be fixed as the alimentary sum in all cases, and to be held as beyond the reach of arrestment. The adoption of this rule has not much diminished the evil, as until decree is pronounced, the workman's whole wages are still locked up by successive arrestments laid on every week, which the master is fearful to disobey by paying any part, however small, to the workman, from the high-sounding terms of the schedule of arrestment left with him, the largeness of the sum generally arrested, and the uncertainty he is under as to what may ultimately be declared by the decree of furthcoming, to be an alimentary sum in the case of his workman. In Renfrewshire and Dumbartonshire, on the other hand, it has been the rule that half the workman's wages, in every case, are to be withdrawn from arrestment. On balancing the advantages and disadvantages of these two rules respectively, the following consideration seems to throw the balance in favour of the Renfrewshire rule, viz. That by permitting the arrestment of the wages of all the working classes, without exception, to the extent of half their earnings, they are furnished with a fund of credit, of vital importance during periodically returning times of commercial distress. The working classes (very many of whom earn under 12s. a-week), are at present frequently exposed to long periods of idleness and destitution, arising either from commercial distress, or the numerous strikes among the superior or skilled workmen, which immediately throw multitudes of the inferior workers, dependent on them for employment, out of subsistence. A great proportion of these persons having no domicile in any parish, and from their constant changes of residence never acquiring one, the only fund to which they can, in such emergencies, look, is the prospect which a creditor, who provides them in the means of subsistence, may have of arresting the half of his debtor's wages, when he is restored to employment. However hard, therefore, it might press upon the immediate interests of the inferior class of workmen, their ultimate interests, as well as those of society in general, would be best promoted by adopting the rule followed in Renfrewshire, and declaring the alimentary share not a fixed sum, but a certain proportion of the wages, whatever they may be. In regard to the wages of ‘odd spinners, and of the piecers employed by each regular spinner, there can be no doubt that their wages, although frequently paid by the masters into the hands of the principal spinner, are to be held as separate and apart from his own, and not attachable by arrestment at the instance of any creditor of his. The present average of wages earned by cotton-spinners, reduced, as they have been, nearly fifty per cent, by the late commercial crisis, and the consequences of the strike in 1837, may be calculated at 2ls. per week to each spinner. An enquiry into the circumstances and family of each defender, or even class of defenders, in the present case, would be attended with the greatest practical difficulty and inconvenience. The expense of living and house-keeping at the various manufacturing places within the district around Glasgow, is not materially different from what it is in Glasgow itself, the expense there being, partly from the great demand for provisions, occasioned by the high wages of the manufacturing classes, and partly from the vast quantity of articles furnished to workmen and their families through what are called clubs, and by the intervention of club tickets—higher than in Edinburgh, or in other places where manufacturing establishments are not in operation on so extensive a scale; so that 12s. a-week in Glasgow, or its vicinity, would not be more than 10s. a-week in Edinburgh.

“2. As to the circumstances of the present proceeding, the reporter summed up his statement as follows;—“Upon the whole, the material facts hitherto established in process, with reference to the alleged collusion between the pursuer and the ruling Committee of the Spinners' Association, appear to be,—the arrestment of the wages of such of the defenders only as refused to contribute farther to the funds of the Association generally; the rapidity with which the arrestments were laid on, and the tardiness with which the summons was executed, and the fact admitted and proved by productions in process, that the conditions annexed by the pursuer to the discharge of his arrestment was, not the contribution by the defenders of half-a-crown a fortnight till payment of his debt of £800 was made; but the payment of half-a-crown a fortnight to the Committee of the Association till the whole debt stated to be due by that body, and amounting to £5920, was paid off.”

Thereupon the Lord Ordinary “in respect of the general nature of the question, and that the case involves interim arrangements, affecting the interests of a numerous class of artisans labouring for their subsistence,” made avizandum with the case to the Court, issuing the subjoined note. ^*

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^* “The present is certainly a very unusual case. It involves the consideration of arrestments used on the dependence of an action brought against nearly 1100 spinners, and other operatives in the cotton manufacture in Glasgow, at the instance of a victual dealer there, who says that he furnished meal amounting in value to £860 to the Association, on the mandate of the Committee, during the well-known strike of the operatives in Glasgow in 1837. This confessedly too is a tentative claim put forward for trial, as other claims to the amount of nearly £6000 are still said to be due to various individuals said to have given credit to the Association, or their Committee. Upon this summons the pursuer has used arrestments against 120 defenders, to the amount of £800 sterling, affecting each.

“The defenders apply for the loosing of these arrestments, not only upon the late act (1 Vict. cap. 41, § 7), which declares ‘the wages of labourers and manufacturers, so far as necessary for their subsistence,’ not to be arrestable, but also on the general circumstances of the case, which, it is said, warrant a very great and liberal relaxation of the diligence.

“It at once occurred to the Lord Ordinary that this case deserved very grave and mature consideration. The present is an application to the judicial discretion of the Court, which must be exercised with a due regard to the proper aliment of the operatives, as protected by statute on the one hand, and to the legal rights of the pursuer, who alleges that he furnished necessaries to the defenders at an antecedent period, on the other. But in so far as the loosing applied for turns on the statute, this Court has not the materials for judging, either what are the circumstances of the defenders, or of the different classes of these parties, from the wages earned by them, or what are their requirements for aliment. It was in order to obtain some such information for his own guidance, or that of the Court, that the Lord Ordinary made the remit to the Sheriff, which has produced the report now to be submitted to the Court.

“Accordingly, the Sheriff has made a report which unquestionably shows the great anxiety that he felt to put the Court fully in possession of every fact supposed to be necessary for the right determination of the present summary question. It is evident, from the notes of objection lodged, that strenuous objections are to be urged against the report, as going beyond the limits or intentions of the remit. But the Lord Ordinary can by no means sanction that statement. However the remit, in the hurry of judicial business, might be expressed, his view was, to authorize the Sheriff to enquire into on the spot, and report on every circumstance, which either might occur to himself, or be suggested by either party, as proper to be taken into consideration in this extraordinary case. It is an entire mistake to suppose that the Lord Ordinary meant the report to be confined to a mere table or vidimus of wages, because obviously the present application depends on various other circumstances competent to have been considered before the statute was passed, and which peculiarly deserve to be taken into view, when arrestments are laid or threatened over the weekly wages of each of many hundred men, to an extent greatly more than they can respectively raise for their whole lives. In this view the reporter has discharged his duty in a very able and satisfactory manner; while, even in reference to the objection that he has gone into a wider scope than was necessary, it is obvious that he was led into this not merely from the general importance of the case, but in some measure by the statements of the parties, whom he was bound to hear on all points before completing his report.

“Upon the question itself, as now prepared for consideration, the Lord Ordinary can probably suggest nothing which will not occur to the Court on a perusal of the ample materials here collected for their guidance. He can only state the views on which he would probably have proceeded had the matter been proper for the disposal of a single Judge.

“In the first place, it is supposed that in this early and preliminary stage of the proceedings, the relevancy and bona fides of the pursuer, as an alleged furnisher of necessaries to a large amount, to a Committee for behoof of a numerous body of men out of work, must be assumed. At present, and before proof, the pursuer cannot be identified with the Association, and still less with the illegal acts of any daring and designing members of it; and it must be taken for granted that the claim, as raised in the summons, may be ultimately sustained.

“In the next place it appears to be equally clear, that in the particular matter now to be arranged, the Court cannot be influenced by any considerations founded on the danger or impolicy of the Association, out of which the present proceeding originates. Indeed, if it were allowable to refer to any general views of policy, it is not easy to say on which side they might be found to operate; for, on the one hand, if the proceedings of Associations formed for more securely carrying strikes into effect, deserve no countenance from the law, from the lamentable excesses to which they appear invariably to give rise, it seems at least equally doubtful, if the parties who have embarked in these schemes should be, on light grounds, relieved from any legal responsibilities, which transactions similar to these would infer in other cases. It is a lesson not without its use to teach men in every sphere, that their acts and transactions in every association formed on speculations for future gain, or from whatever view they may be entered into, must attach to their industry many months afterwards till their lawful debts are discharged. But,

“In the third place, the Court will not, even on these considerations, expose men returned to industrious habits of life, to an undue and oppressive use of diligence. Whatever may have been the object of the Association, or the demerits of their ringleaders, they are entitled to the fair protection of the law; and the Court is peculiarly bound to take care that the arrestments are not used vexatiously and oppressively against these men for the purposes of compulsion and extortion; and to deprive them of the means of ultimately defending themselves on the merits, and expiscating freely the grounds and amount of the pursuer's claim. In this view, the following considerations occur to the Lord Ordinary.

“I. The first enquiry is, what is the legal right of the operatives under the late statute, which declares the wages of the defenders not to be arrestable in so far as alimentary?

“It appears very difficult to lay down any general rule as to what shall be held a fair and reasonable amount of aliment in all cases. In Lanarkshire, it is said that 12s. a-week, is adopted as an universal rule of modification as to all artisans;—while in Renfrewshire, a certain proportion or per centage of the wages, is stated to be held as alimentary. It is rather thought, that neither of these principles ought to be adopted as an unvarying rule. But,

“(1.) The Lord Ordinary is certainly disposed to think that 12s. per week should, in these times, be held as the minimum aliment to be modified to any artisan having the subsistence, rent, and necessaries of a family to provide, in a populous town, which is the seat of manufactures.

“(2.) In so far as wages exceed 12s. per week, the Lord Ordinary would not, even in that case, hold the whole surplus as not alimentary and arrestable, because it is plain, that workmen of superior skill (just like men attached to scientific or literary labour in other departments of industry), very reasonably require a greater allowance for the support of their families, than operatives in the very humblest class. On the faith of their earnings, superior workmen may have taken houses of higher rent, or engaged domestic servants, or provided clothes to their families, on a different scale from the humbler operatives. Hence, as to workmen earning wages, the Lord Ordinary would be disposed quoad the excess, to adopt the Renfrewshire principle, and to hold a certain part of that surplus as alimentary, and a certain part as arrestable. Perhaps it would not be too severe or unreasonable, in cases of this description, to divide the surplus, and to hold 50 per cent of the surplus as alimentary, and 50 per cent as arrestable. In this way, if an artisan earned 20s. a-week, 4s. would be arrestable, and if he earned 30s., even 9s. would be arrestable. Probably these proportions may be varied on hearing counsel. The proposition is suggested as a matter for discussion, when the case comes before the Court.

“It must be added, however, that should the arrangement now suggested be viewed as pressing, with any apparent severity, on the higher class of artisans, it ought constantly to be recollected, that it is they who obviously have, and ever must have, the greatest pecuniary interest in strikes; and, indeed, if there be not a great error in the statistics of strikes, generally circulated, it would appear that almost every combination for rise of wages is truly a scheme for the benefit of the higher workmen; and very little, if at all, for the advantage of the more numerous and humbler classes of operatives.

“II. But even when these elements are fixed, another question of great moment falls to be considered, and this relates to the gross amount to which these arrestments ought to be limited, apart altogether from the alimentary question. As the summons is libelled, a conjunct and several liability against the defenders is concluded for; and the arrestments, to the extravagant and absurd extent of £800, are laid against each defender. No merchant, or other party, who made any furnishings to the Association, could ever have relied on having recourse to that, or any similar amount, against these poor people as individuals; and it is not thought that the furnishers of these associations are entitled to any stretch of the law in their favour. They will probably have to show that each member authorized the Committee to order the furnishings now claimed; and even then it may he doubted if a conjunct and several liability ought to be presumed, as known to and undertaken equally by all the members of this Association, when their ultimate interests in the strike were very different. In this point of view, the Lord Ordinary would have been disposed to limit to a very moderate sum, indeed, the arrestments, even as attaching to the surplus of each defender's wages. He does not think that the pursuer has any legitimate interest, and certainly he has not at present any prima facie claim, to more. As the Association is said to consist of 1100 in number, and as the gross claims by parties in the situation of the pursuer are said to amount to about £6000, it is evident that £5 or £6 from each member would cover all claims; but as this pursuer has not one-sixth part of the gross debt, the sum of £1 from each member would satisfy all his claims.

“It is left to the Court, after such explanations as may be given viva voce, to adjust the amount to which the arrestments should be limited in this view. They may either be fixed at present at a definite sum, on the understanding that all other arrestments to be used by other furnishers to the Association should be held as covered by the sum directed to be at present retained from each defender,—or the arrestments of this pursuer may be loosed on a limitation applicable to his own claim. In this former view, it is probable that the arrestments, as affecting each defender, should be loosed, in so far as more than £6 shall be attached against any one defender; in the latter view, it is doubted if more than £1 or 30s. of the earnings of each defender, should be allowed to be tied up. This part of the arrangement, however, can only be satisfactorily adjusted on having a more full explanation from the bar on the subject, than has yet been given to the Lord Ordinary.”

The Dean of Faculty, for the complainers, contended:—In the circumstances of the case, this is an oppressive use of diligence, looking particularly to arrestments, each for so large a sum as £800, being used against the complainers' wages for successive weeks; in a question whether diligence is nimious, it is competent to look to the nature of the action on the dependence of which it is used; ¹ the pursuer has failed to libel a case which can warrant this diligence, the ground of action stated not being such as on which the defenders can be rendered individually liable, since in order to constitute a conjunct and several liability against them it would have been necessary to allege that each member of the association had given authority to the committee to provide furnishings; besides a proceeding, such as the present, against the whole members, was not contemplated by the rules of the association; ² nor was the nature or constitution of the association such as that the committee can be held to have been authorized to bind the other members or pledge their credit for the furnishings in question. ³ Moreover the parties acceptors of the bills libelled on, who are the proper obligants, ought to have been first discussed; and the present complainers have been unfairly dealt with, and to their manifest prejudice, in so far as the other defenders, and those of the original complainers who signed the agreement and the minutes in May and June, were released, by so doing, from the action and diligence.

Robertson, for the respondent, in answer contended;—This is a question as to the ordinary use of diligence in an action for debt competently and regularly laid; and the only question ought to be, to what extent the arrestments can be used against the complainers' wages, the respondent being willing to have the arrestments restricted, and kept in force only till he is secured in the sum of £800.