Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 5_144_1, [1867] SLR 5_144_1

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Monday, December 29. 1867.

5 SLR 144_1

Holland

v.

Gauchalland Coal Co.

Subject_1Statute
Subject_2Construction
Subject_3Master and Servant Act 1867
Subject_4Citation — Recovery of Compensation.
Facts:

Held, in a suspension of a conviction under the Master and Servant Act 1867, (1) that an objection taken to the citation was formal and technical, and therefore excluded by section 20; and (2) that under section 11 of said Act, and section 19 of the Summary Procedure Act, a Sheriff has power, if he thinks it expedient, to order recovery of a sum awarded as compensation by means of instant imprisonment.

Headnote:

The suspender, John Holland, was tried before the Sheriff-substitute of Ayrshire, at Kilmarnock, in September 1867, upon a complaint at the instance of the respondents, presented under the Master and Servant Act 1867. The complaint set forth that “the said John Holland being the servant of the said Gauchalland Coal Company and partners thereof in their trade or business of coalmasters, under a certain oontract of service to work to the complainers as a collier in their works at Gauchalland for a period now unexpired, did, on
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9th September 1867, unlawfully neglect, and has ever since neglected to fulfil the said contract, and has absented himself from the service of the said employers without just cause or lawful excuse.” The complaint also set forth that the amount of compensation claimed for the said breach of contract was £20, and prayed that the said John Holland might be summoned and adjudicated upon under section 9 of the Master and Servant Act 1867.

By section 9 of said Act (30 and 31 Vict. c. 141) the Sheriff is empowered, on the hearing of any complaint under the Act, to make one or other of various orders. One of these is thus expressed— “Or else shall assess and determine the amount of compensation or damage, together with the costs, to be made to the party complaining, inclusive of the amount of wages abated, and direct the same to be paid accordingly.”

By section 11 it is enacted that “where, on the hearing of an information and complaint under this Act, an order is made for the payment of money, and the same is not paid as directed, the same shall be recovered by distress or poinding of the goods and chattels of the party failing to pay, and, in default thereof, by imprisonment of such party according and subject to the Acts described in the second schedule to this Act; but no such imprisonment shall be for more than three months, or be with hard labour.” The only Act mentioned in the schedule which applied to Scotland is the Summary Procedure Act 1864.

By section 19 of the Summary Procedure Act, it is enacted—“In all cases instituted under this Act, in which any penalty is or shall be recoverable by poinding, or distress and sale, arrestment or other summary process of execution, and in which the respondent is also liable to be imprisoned for a term to be specified in the warrant of imprisonment, either immediately or in default of the recovery of the penalty by execution, the Court, in lieu of granting warrant for recovery by poinding and sale, may issue a warrant for the immediate imprisonment of the respondent for any term not exceeding the term specified in the Act of Parliament;, in one or other of the forms appended to Nos. 4, 5, and 6 in schedule (K).”

On the hearing of the complaint, “the Sheriff-substitute, in respect of the evidence adduced, convicts the said John Holland of the contravention charged, and therefore adjudges him to forfeit and pay the sum of £20 of compensation, with the sum of 30s. of modified expenses, and that to the com—plainers: And, in respect it is inexpedient to issue a warrant of poinding and sale, ordains instant execution by imprisonment, and grants warrant to officers of court to apprehend the said John Holland, and convey him to the prison of Kilmarnock, and to the keeper thereof to receive and detain him for the period of one calendar month from the date of his imprisonment, unless the said compensation and expenses shall be sooner paid.” The warrant of imprisonment was in the terms of the schedule (K) to the Summary Procedure Act.

Holland having brought a suspension of the above sentence,

J. Campbell Smith and Cattanach for him argued—1. The suspender was cited to appear in answer to the complaint on 16th September 1867. The officer had no warrant for doing so. Neither the complaint nor the warrant of citation was dated, and the latter granted warrant for citation to appear “on the 16th day of September current” which might mean any September. 2. The Sheriff had no power to grant warrant for the suspender's instant imprisonment. Section 19 of the Summary Procedure Act applied to the recovery of penalties and not of compensation, such as had been ordered to be paid in this case.

Judgment:

Burnet ( A. R. Clark with him), for the respondents, replied—1. The objection to the warrant of citation was untenable. September 1867 was the only September which could have been intended; but the objection at best was one in regard to a matter of form, which by section 20 of the Act was excluded. 2. Section 11 of the Act contained the only provision in regard to the mode of recovering money ordered to be paid, whether fine or compensation, and unless compensation is recoverable under that section, and the Summary Procedure Act imported into it, there is no mode prescribed for recovering it at all, which cannot have been intended. The warrant of immediate imprisonment was thus in conformity with the statute.

Lord Justice-General—The citation given to the suspender professed to furnish him with a true copy of the complaint and warrant, and summoned him to appear on 16th September 1867. That was complete in itself, if the copy served had been a correct copy. But the complainer says that the officer had no sufficient warrant so to cite him, because there was no date on the copy of the complaint, or of the concurrence of the public prosecutor, or of the warrant of citation, and all that the latter said was, that the party complained on was to appear personally to answer to the complaint on 16th September current. Now that, he says, is a relative term, and if you cannot ascertain to what it is relative, you cannot find out what is meant. It is said that the officer got out of the difficulty arising from the terms of the warrant by inventing a form of citation not authorised by the warrant. It must be kept in view that the forms in the third schedule are provided for in the 20th section, which says [ reads]. Now, in the first place, it is clear that it is optional for a party to use the forms in that schedule or not as he thinks proper. He must use forms which are equivalent, and he may be safer to adhere strictly to these forms, but this is not imperative. In the second place, no mere objection in point of form applicable to proceedings which follow, or are equivalent to, the forms in that schedule, is of any avail. It appears to me that the objection here is merely formal and technical. It has no substance in it, and, even if it had, objections in regard to substance are also excluded. But I prefer resting my judgment on the ground that this is a mere formal objection. It is impossible that the warrant of the Sheriff could mean any other month of September than that of the current year in which the offence charged in the complaint had been committed; and I think the officer only did his duty in making his service copy more distinct in this particular.

But then an objection is taken to the form of the sentence, which must be carefully handled. The 9th section of the Act presents a great number of alternatives to the sheriff or justices sitting to administer this statute. It enables them to annul the contract, or to enforce it, or to impose penalties, or award compensation, singly or in combination. Here what the petitioners asked the Sheriff to do was this. They prayed that the suspender might be summoned and adjudicated upon under section 9. The Sheriff was left free either to award

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compensation or to take any of the other courses mentioned in section 9; and therefore there is no good objection on the ground that the Sheriff was limited to awarding compensation, or to his being tied down to award only the amount claimed, which was £20. The Sheriff thought that an award of compensation was, in this case, the most just course to follow, and accordingly, in respect of the evidence, he convicted the suspender, and adjudged him to forfeit and pay to the employers the sum of £20 of compensation. So far, there is no doubt the Sheriff was quite correct. But he goes on to ordain instant execution by imprisonment. This is said to be ultra vires. Now, the whole of this matter depends on the 11th section of the Act, and it comes to be a question of considerable importance, and, so far as I know, it is the first time the question has arisen. The great bulk of the sentences to be pronounced under the 9th section must depend on the 11th for the manner in which they are to be put into execution. Certainly, both a sentence to pay compensation and one to pay a penalty are within the operation of that section, and there is not, so far as I see, any provision for putting such sentences to execution except in section 11. Now, what that 11th section says is, “where, on the hearing of an information or complaint under this Act, an order is made for the payment of money, and the same is not paid as directed”—that unquestionably comprehends both cases, compensation as well as penalties—“the same shall be recovered by distress or poinding of the goods and chattels of the party failing to pay, and, in default thereof, by imprisonment of such party, according and subject to the Acts described in the second schedule to this Act.” This provision is conceived very much in the terms your Lordships have had occasion recently to construe in cases under the Small Debt Act and the Debts Recovery Act, where there was provided a certain form for carrying the Act into execution, which we held to be exclusive of every other mode, and to be the only one which could be resorted to. ( A v. B, ante, p. 83.) I think this section must have the same construction. The 11th section provides for recovery of the money ordered to be paid according and subject to the Acts described in the second schedule. In regard to the whole kingdom, the Acts so described are statutes of the same kind. In regard to Scotland, the Summary Procedure Act is the statute described. It provides machinery for the recovery of penalties and expenses, but none for the recovery of compensation, and that for this very good reason, that there was no statute then existing to which the Summary Procedure Act could be applied, authorising any decree for compensation. That is a novelty introduced by this Act. It may very fairly be said that this Act might have been framed with more perspicuity if the framer of it had had more distinctly the fact in view that this mode of awarding compensation is a novelty. But the question is, Are we to defeat this reference to the Summary Procedure Act in respect of this ambiguity? That would be an unfair construction of the statute, and it is not necessary, for if we go to the 19th section of the Summary Procedure Act, we find provision for the recovery of penalties, but the whole machinery is equally applicable to the recovery of other sums as well as penalties. There is no reason for making any difference. I therefore hold that when this 11th section refers to the Summary Procedure Act for directions as to putting the decree for compensation into execution, we must read that Act as if it had referred to such proceedings as the present. Then the whole difficulty disappears. For in such cases as that before us, the sheriffs or justices are entitled to take into consideration whether it is expedient to issue a warrant of poinding or to dispense with all trial of that remedy. The Sheriff has here adopted the alternative of imprisonment, and, assuming the correctness of the view which I take of the statute, I think it was within his power to do so.

The other judges concurred.

The suspension was accordingly refused with expenses. ^*

Solicitors: Agent for Suspender— David Forsyth, S.S.C.

Agent for Respondents— John Thomson, S.S.C.

_________________ Footnote _________________

Note.—This case and the cases of Smith v. Andersons, p. 135, Morris and Boyd v. Earl of Glasgow, p. 136, and Kennedy v. Cadenhead, p. 138, ought to be under the head of High Court of Justiciary, all of date Tuesday, December 24.

1867