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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Taylor v. Ormond & Co. [1906] ScotLR 43_652 (28 February 1906) URL: http://www.bailii.org/scot/cases/ScotCS/1906/43SLR0652.html Cite as: [1906] ScotLR 43_652, [1906] SLR 43_652 |
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Page: 652↓
(Glasgow Circuit Court.)
[
In a small debt action for wages, the defenders, without having given any notice of counter claim, led evidence of previous over payments to the pursuer to an amount exceeding the sum sued for, and the Sheriff giving effect to such evidence assoilzied them. Held ( per Lord Pearson) on appeal that this defence was truly a counter claim of which notice should have been given in terms of the Small Debt (Scotland) Act 1837, section 11, and that its admission without notice was such a deviation in point of form from the statutory enactments as had prevented substantial justice from being done within the meaning of section 31 of the said Act, and appeal sustained.
The Small Debt (Scotland) Act 1837 (7 Will. IV and 1 Vict. cap. 41), section 11, enacts— “And be it enacted, that where any defender intends to plead any counter account or claim against the debt, demand, or penalty pursued for, the defender shall serve a eppy of such counter account or claim by an officer on the pursuer ... at least one free day before the day of appearance, otherwise the same shall not be heard or allowed to be pleaded except with the pursuer's consent, but action shall be reserved for the same.” Section 31—“And be it enacted, that it shall be competent to any person conceiving himself aggrieved by any decree given by any sheriff in any cause or prosecution raised under the authority of this Act to bring the case by appeal before the next Circuit Court of Justiciary. …Provided al ways that such appeal shall be competent only when founded on the ground of corruption or malice and oppression on the part of the Sheriff, or on such deviations in point of form from the statutory enactments as the Court shall think took place wilfully, or have prevented substantial justice from having been done, or on incompetency, including defect of jurisdiction of the Sheriff.
Taylor, a seamstress, raised an action in the Small Debt Court at Glasgow against Ormond & Company, by whom she was employed on piecework, for the sum of £1, 15s. 7½d. as wages due for work done by her for them between 17th August and 1st September 1905. It was proved that the pursuer had worked for the defenders and earned the sum sued for during that period. The defenders then proceeded to lead evidence and produced a written statement showing that at various dates between December 1904 and the period in question the pursuer had been erroneously paid by them various sums in excess of the wages due to her at the respective times of payment, and that the total of these sums exceeded the sum sued for. Objection was taken to such evidence being received, inter alia, on the ground that no notice of counter claim or statement of the dates and amounts of the alleged over-payments had been served.
The Sheriff-Substitute ( boyd) repelled this objection, admitted the evidence tendered for the defenders, and in respect of it granted them decree of absolvitor.
The pursuer appealed to the Circuit Court at Glasgow on the following grounds:—“(1) Because the Sheriff-Substitute in admitting said evidence for the respondents without any counter account or claim having been served on the pursuer deviated in point of form from section 11 of the Small Debt (Scotland) Act 1837, wilfully, or so as to prevent substantial justice from being done, and (2) because the Sheriff-Substitute, in so admitting said evidence, acted with malice and oppression in the sense of section 31 of said Small Debt (Scotland) Act 1837.”
Argued for appellant — The defence amounted to a counter claim, notice of which should have been given in terms of the Small Debt (Scotland) Act 1837, section 11 — Cowie v. Rush, September 28, 1866, 5 Irv. 320, 2 S.L.R. 279; Renfrew v. Hall, November 26, 1901, 4 F. (J.) 27, 39 S.L.R. 280.
Argued for respondents—The action was properly one of accounting; the defence was an adjustment of the account and not a counter claim to which the statute would apply. This was the view taken by the Sheriff-Substitute and, whether right or wrong, his decision upon this point was final and not open to review— Buchanan v. Glasgow Corporation Water-Works Commissioners, September 19, 1862, 4 Irv. 225; Mosson v. Brash, September 27, 1872, 2 Coup. 325.
Page: 653↓
On the argument for the respondents I am asked to assume that the Sheriff entered into an accounting, and held that the work of the fortnight for which wages are sued was really covered by the alleged previous over-payments. That would be a startling result; it makes one look at the case more closely. When attention is paid to the claim in the Sheriff Court I see that the appellant lays her claim of £1, 15s. 7½d. as for wages from 17th August to 1st September 1905, for piece-work services rendered by her to the defenders during that period. Now, I have heard nothing to suggest that the Sheriff negatived that in assoilzieing the defenders. It rather appears to me that he did not negative it, and that he assumed that the fortnight's wages were earned, but held that they were compensated by some over-payments made in respect of previous work. I am prepared to hold that the defence was really and truly a counter claim, and that there should have been notice of it by service, in order that the pursuer might have an opportunity of meeting it. That being so, I think I must proceed under section 31 and hold that there was such deviation from the statutory enactments as has prevented substantial justice from being done. I therefore sustain the appeal, recal the decree of the Sheriff-Substitute, and remit to him to decern in terms of the summons.
The Court sustained the appeal.
Counsel for Appellant—Mercer. Agent— Archibald Hamilton, Solicitor, Glasgow.
Counsel for Respondents— J. R. Christie. Agents— Middleton & Brown, Writers, Glasgow.
