Scottish Court of Session Decisions

Under an agreement with his employers, a lamplighter's wages amounted during the summer months to 18s. per week. During the winter months he received £2, 4s. per week, out of which he was bound to pay the wages of two assistants which reduced his own wages to 19s. per week. Held that he was a workman in the sense of the statute, that the agreement in reference to the winter months did not put him in the position of a contractor, and that his wages were not arrestable.

This petition was presented by Donald M'Murchy, lamplighter, Oban, for the recall of arrestments of his wages used in the hands of the Police Commissioners of the burgh of Oban.

The petitioner stated that he came under an engagement for lighting, extinguishing, and cleaning the lamps of the burgh of Oban for a year from 18th August 1887, by acceptance of an offer of the Police Commissioners of the burgh.

Under his engagement he undertook to light, extinguish, and keep clean the lamps from 18th August to 20th April 1888 for the weekly sum of £2, 4s., from which sum he had to pay the wages of two assistants whom, under his engagement, he was bound to employ. The wages of these assistants amounted to the sums of 15s. and 10s. per week respectively, so that his actual income during the period of his engagement was 19s. per week. From 20th April to 18th August 1888, during the lighter work of the summer months, the services of the assistants were dispensed with, he himself doing the work at the wages of 18s. per week.

The petitioner averred that these weekly payments from the Police Commissioners were the only source of income which he possessed, and that from these payments he had to meet the expenses of maintaining a wife and four children.

In the beginning of 1887 the petitioner raised an action of damages for slander in the Court of Session against Peter Campbell, lately Inspector of Police in Oban, and J. C. Maclullich, Procurator-Fiscal for the county of Argyle, and residing at Inverary. In this action he was unsuccessful, and in connection with it incurred liability to Messrs Emslie & Guthrie, S.S.C.,

Edinburgh, who acted as agents for the defender Campbell, to the extent of £31, 10s., the amount of their account.

Upon 20th July 1887 Messrs Emslie & Guthrie obtained decree for this sum as agents disbursers, and upon this decree used arrestments in the hands of the Police Commissioners, of date 11th and 26th November 1887, by which they claimed to have attached the whole wages of the petitioner under his engagement, and the Police Commissioners accordingly, since 26th November, refused to pay the petitioner the sum of £2, 4s. under their contract.

The petitioner stated that, while anxious to discharge his liabilities to the arresters, he was yet unable to set apart from his weekly wages of 18s. er 19s. a sum to that end. as his wages were barely sufficient to secure the necessaries of life for himself, his wife, and family. Further, that he was suffering great inconvenience and hardship from the use of these arrestments, as he was unable to employ and pay for two assistants, whom he was bound to employ in terms of his engagement with the Police Commissioners, and thus he might be driven, by the action of the arresters, to an infringement of his contract, and the consequent deprivation of such means of livelihood as he possessed. In these circumstances he averred that the use of the arrestments was unreasonable and oppressive, and the arrestments themselves were incompetent, and he prayed for their recall.

The respondents denied that the proceeds of the contract constituted the petitioner's sole income. They averred that besides receiving remuneration for lighting private lamps from residenters, he had the whole day at his disposal for other employment, as his contract involved the discharge of no duties during the day, and any assistants he might employ were also then free to do any work they liked. They submitted that it was incompetent in a petition for recall to determine or affect their rights under the arrestments, and in any view, that the petitioner had not set forth relevant grounds showing them to be incompetent or stated circumstances instructing that their use was unreasonable and oppressive.

Argued for the petitioner—The arrestments were not competent under the Wages Arrestment Limitation (Scotland) Act 1870. The Court was in a position to say that they should never have been used at all— Vincent v. Lindsay, November 2, 1877, 5 R. 43; Dick, Petitioner, December 24, 1887, ante p. 281.

Argued for the respondents—The petitioner's income was larger than he admitted. He was in the position of a contractor, and was not a workman in the sense of the Act. This was an arrestment in execution following upon a decree, and there was no authority for the Court interfering—Erskine, iii. 6, 12.

At advising—