Scottish Court of Session Decisions

William Cameron sued his late master, John Scott, farmer, Lochslin, Ross-shire, for £38, 6s. 8d., being his wages, &c., for the year from Whitsunday 1870 to Whitsunday 1871, the pursuer alleging that he was, from the term of Whitsunday 1869, cattle-man or cattle-herd to the defender, down to the term of Whitsunday last, when he was, on the requisition of the said defender, obliged to leave his said service, on account of a warning to that effect received by him from the defender on the 8th day of April 1870, but which warning was not timeously made or given to the pursuer.

The letter dismissing the pursuer was as follows:—

“Mr William Cameron. Lochslin, 8 th April 1870.

Dear Sir,—I hereby give you notice that I do not require your service past the 26th day of May1870.—“Yours truly, John Scott.”

The Sheriff-Substitute ( Taylor) pronounced the following interlocutor:—“In respect the pursuer admits that notice was given to him on the 8th of April last that his services would not be required by the defender after the 26th of May following, when his engagement admittedly expired —Finds that the contract between the parties was thus legally terminated, and therefore assoilzies the defender from the conclusions of the action, and decerns: Finds him entitled to his expenses.

“ Note.— If the law is correctly found in the interlocutor, it is unnecessary to consider the defence that all parties have not been called, or to require proof of the defender's averment that the pursuer had earlier notice of the termination of his engagement than that admitted to have been given on the 8th of April.

The pursuer's contention is, that the notice given to him on the 8th of April was too late, though forty-eight days before his term, the 26th of May; and that he was entitled to consider himself re-engaged on the 4th of April, forty days before 15th May, the legal term of Whitsunday, because notice had not, as he alleges, then been given to him. He pleads that, notwithstanding that his engagement ran from Whitsunday to Whitsunday old style, custom entitled him to forty days’ notice of its termination, counting from Whitsunday new style.

The length of the notice required to terminate a servant's engagement is not prescribed by any statute, but practice has fixed it at forty days, on the ground that that is the notice required between landlord and tenant for terminating the contract of lease. The Act of 1555, regulating the warning of tenants, required the notice to be given forty days before Whitsunday, even though the term of removal were at a different term— e.g., Martinmas, or the separation of the crop from the ground. Whitsunday in that Act meant Whitsunday old style—the only style then observed. It is true that from the introduction of the new style in 1752, it was held that the terms of the Act by which the change of style was effected required that warning of removal to tenants should be given forty days before Whitsunday new style, though the term of removal was Whitsunday old style, or some other term; and it has been said that custom extended this rule to notices between master and servant. It is believed, however, that there never was a decision of the Court to the effect that notice between master and servant given forty days before the actual term to which the engagement ran was not sufficient. But, however this may be, the rule as between landlord and tenant, requiring warning to be given in every case forty days before the legal term of Whitsunday, has now been altered by statute, the Sheriff Courts Act of 1853 allowing a summons of removal to be raised at any time forty days before the actual term of removal, so that when the 26th of May is the term of removal, it is now competent to terminate the tenancy by a summons of removing served on or before the 15th of April. That being so, it follows that if the former rule, requiring forty days’ notice before Whitsunday new style to be given between landlord and tenant, though that should not be the actual term of removal, was by custom applied also to master and servant, the change of the rule as regards the former must extend to the latter also, and that it is now sufficient to give a servant, whose term is, as here, the 26th of May, notice on or before the 15th of April. If it were otherwise, a tenant warned by a summons served on the 16th of April to remove from his farm on the 26th of May would be left with all his servants on his hands, though having no farm on which to employ them, if he did not give them notice on the 4th of April, a time when he may have had no knowledge that he was not to be continued in his farm. This would not be a desirable state of things for either master or servant, and cannot be assumed to be the law.”

The pursuer appealed.

Trayner for him.

M'Lennan in answer.

At advising—