Scottish Court of Session Decisions

This was an action by Matthew Russell, a farm-servant, against William Russell, farmer at East Redburn, the pursuer's brother, concluding for “the sum of £166 sterling, being the balance of wages, including interest, due by the defender to the pursuer on the 15th day of May 1868, when the defender granted to the pursuer therefor the I.O.U. or document or voucher of debt more particularly after-mentioned, and which sum is still resting-owing by the defender to the pursuer, the said wages being for services rendered by the pursuer to the defender as a farm-servant on the defender's farm of East Redburn, continuously from Whitsunday 1828 to Whitsunday 1852; and also for services rendered by the pursuer to the defender on said farm from Whitsunday 1855 to Whitsunday 1861; and also for occasional services rendered by the pursuer to the defender on the said farm between Whitsunday 1861 and Whitsunday 1868, the pursuer and defender having, during the most of the said period from Whitsunday 1828 to Whitsunday 1868, and more especially after Whitsunday 1852, adjusted their account or ascertained the balance once every two years, when the defender granted and delivered a document to the pursuer acknowledging the balance due at its date, and received up at each such adjustment the document granted at the immediately preceding biennial adjustment, the pursuer having occasionally at those adjustments, and sometimes between them, received payments to account when he required the same, the last such adjustment having taken place at Whitsunday 1868, when, after giving credit for all payments made, and adding the interest then due, the balance due the pursuer was ascertained to amount to the said sum of £166 sterling, and there was delivered to the pursuer as in evidence of the said debt, the said I.O.U. or document or voucher of debt of that date.”

The defender pleaded inter alia:—“(2) The alleged I.O.U. or acknowledgment of debt is improbative, being neither holograph nor tested, and the same does not constitute a legal obligation; (5) The pursuer's claim for arrears of wages for services rendered prior to 1867, and all interest arising thereon, is prescribed.”

The Sheriff-Substitute ( Horne) pronounced an interlocutor by which he “finds that said alleged document is denied by the defender to have been the constitution of any debt between him and the pursuer, and that the genuineness of the same and its probative nature are denied: finds that it is also averred that the services for which said alleged document was granted by the defender to the pursuer were performed through a series of years, and

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to the amount claimed not paid for: finds that said document or I.O.U. is an improbative document as it stands, and does not of itself prove that said arrears are due: finds that it can be proved only by the oath of the defender that he signed and granted said document as one of debt to the pursuer, and that failing the constituting of his claim in this manner by said document, that the pursuer can have recourse only to the oath of the defender also to establish the same as one of services performed and unpaid for, prescription having run upon the whole, as far as these are in any way properly or distinctly specified in his summons; therefore allows the pursuer such proof of the averments contained in his revised condescendence, so far as they refer to said points, and appoints him to lodge a minute of reference to the defender's oath as to the same accordingly.”

The Sheriff ( Monro) on appeal pronounced the following interlocutor:—“Recals the said interlocutor hoc statu, and before answer allows the pursuer a proof that the writing No. 2 of process was written by the defender's son by the authority of the defender, and is signed by the defender; that it was granted on occasion of, and for the purpose of ascertaining an amount of balance of or arising from wages due by the defender to the pursuer, and was delivered to the pursuer accordingly, and that in return for the same the pursuer delivered up to the defender a previous writing granted by the defender of a similar nature, and that on the faith of said writing the pursuer continued in the employment of the defender, or otherwise acted in reliance on the same, or that the same was homologated by the defender; and to the defender a conjunct probation.”

The defender appealed.

J. M'Laren, for him.

Guthrie Smith, for the respondent.

At advising—