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Cite as: [1874] SLR 11_582, [1874] ScotLR 11_582

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SCOTTISH_SLR_Court_of_Session

Page: 582↓

Court of Session Inner House First Division.

Friday, June 12. 1874.

[Sheriff of Wigtown and Kirkcudbright.

11 SLR 582

Young

v.

Mitchell.

Subject_1Res judicata
Subject_2Master and Servant Act 1867.

Process
Subject_3Supplementary Summons
Subject_4Competency.
Facts:

A judgment in a complaint under the Master and Servant Act 1867, is res judicata in an action in the ordinary Courts involving the same question, and between the same parties.

A supplementary summons to call a new party into Court cannot be maintained as a substantive and separate action, but must stand or fall with the principal action.

Headnote:

This was an appeal from the Sheriff-court of Wigtown and Kirkcudbright in the following circumstances:—On 20th October 1873 Thomas Young, farm-servant, brought a complaint in the Sheriff-court, under the Master and Servant Act 1867, against Quintin Mitchell, farmer, of Meikle Firth-head, for £25 damages for breach of contract, committed by the respondent dismissing the complainer from his service on 18th October 1873.

The Sheriff-Substitute ( Nicholson) found the complaint not proven.

On 7th November 1873 the complainer raised an action against the respondent, claiming payment of—(1) £9, 16s. as the amount of wages due to the pursuer for the half-year from Whitsunday to Martinmas 1873. (2) £1, 15s. as the amount of board wages due to the pursuer from 18th October to Martinmas 1873, and (3) £15, as the amount of damages due to the pursuer by the defender in consequence of his having been wrongfully dismissed from his services on 18th October 1873.

The Sheriff-Substitute, by interlocutor of 13th October 1873, dismissed the action on the ground of res judicata.

Before this interlocutor, and on 28th November 1873, the pursuer Thomas Young, in consequence of its being pleaded by the defender in the action of the 7th November that the instance was defective in respect that his mother and not himself was the tenant of the farm of Meikle-Firthhead, brought a supplementary summons with the same conclusions, directed not only against the said Quintin Mitchell but also against his mother.

In regard to this supplementary action, the Sheriff-Substitute on 21st January 1864 found that, as it was supplementary to the action which he dismissed by interlocutor of 13th December 1873, it could not be further proceeded in, and therefore dismissed the action.

On appeal the Sheriff ( Hector) adhered to the judgment of the Sheriff-Substitute in both actions.

The pursuer appealed against the judgment of the Sheriff in both cases, and argued—The Master and Servant Act was in substance a criminal Act, involving penalties of a criminal character. A judgment in a complaint laid under that Act could not therefore be founded on in support of a plea of res judicata in an action for damages in the ordinary Courts.

As to the supplementary summons, it was in truth a new action, and could be maintained as a separate action now, although the first action should be dismissed.

Roy v. Hamilton & Co., 15th Feb. 1868, 6 Macph. 452.

At advising—

Judgment:

Lord President—There are two actions before us, upon separate appeals. In the first action the Sheriff-Substitute, and on appeal, the Sheriff, sustained the plea of res judicata. The ground of action is a breach of contract of service, by the defenders having wrongfully dismissed the pursuer from service on or about the 18th day of October 1873, and the damages claimed are £26, 10s. The judgment which is founded on in support of the plea of res judicata was pronounced by the same Sheriff in a complaint between the same parties under the Master and Servant Act of 1867. This complaint alleges the same breach of contract as that narrated in the summons. The complaint indeed does not specify what the breach of contract consists of, but the date is the same and the parties are the same, and so there can be no doubt that the alleged breach is the same.

It is maintained for the appellant that the summary proceeding before the Sheriff was of the nature of a criminal complaint, and so what happened in these proceedings cannot be pleaded as res judicata. I think that argument is bad. A judgment in a Criminal Court may support a plea of res judicata in a Civil Court if the action in both Courts involves the same question between the same parties. But it is said that the claim for damages in the complaint is only in compliance with the form of the Act of Parliament, and that the Sheriff might not have given damages, but

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might have found for the complainer, and imposed a fine or something of that sort instead of awarding damages. That is quite true, for under the Act in a complaint of this sort there are five different courses open to the Judge trying the case. In the first place, the Judge may impose the penalty by abatement of wages, or, in the second place, he may require security with an alternative of imprisonment, or he may annul the contract and apportion the wages, or he may inflict a fine, or, in the last place, find the party liable in damages. So every complaint has all these alternatives embodied in it, just as if each was separately concluded for. Now, in this complaint the breach of contract was not proved, and the Sheriff granted decree of absolvitor, and the complainer can therefore get none of the remedies competent under the Act, and competent under this complaint, although it only concluded for damages. Now, I think that judgment is plainly pleadable against an action brought to obtain damages for the same complaint. So I think the Sheriff was right to sustain the plea of res judicata. The section 18 of the Act of 1867 provides that nothing shall prevent employer or employed from enforcing their rights in the ordinary Courts “in any case where proceedings are not instituted under this Act.’ That provision clearly shews that where proceedings are instituted under the Act an action in the ordinary Court shall not be competent.

As to the second action, the Sheriff has dismissed it because it is supplementary to a principal action which had been disposed of. The object of this supplementary action is to bring a new defender into the Court, and I do not think that a supplementary summons to call a new party into Court can be maintained as a substantive and separate action, but it must stand or fall with the principal action. This case is different from the case of Roy v. Hamilton, for in that case the supplementary action was supplementary in a different sense, being an action brought, not to introduce a new party to the case, but to bring a new claim against the same party. It is clear that might have been made the subject of a new action, and was not properly a supplementary action at all. I should be sorry to extend the doctrine laid down in the case of Roy to the ordinary case of supplementary actions, and I am therefore of opinion that the Sheriff is right.

The other Judges concurred.

Appeal dismissed.

Counsel:

Counsel for the Pursuer— Scott. Agent— D. F. Bridgeford, S.S.C.

Counsel for the Defender— Watson and Mackechnie. Agent— W. Scott Stuart, S.S.C.
1874