Scottish Court of Session Decisions

William Wood Neilson, superintendent of the Falkirk and Larbert Water Trust, brought this action against the Provost, Magistrates, and Town Council of Falkirk, concluding for payment of certain sums, amounting in all to £891, 17s. 4d., which he alleged to be due to him in respect of certain offices held by him in the burgh of Falkirk, and which were made up as follows:—

	From 3rd March 1890 to 15th May 1893.			From 15th May 1893 to 5th November 1897.			TOTAL.
Inspector of Cleaning, @£30 per annum	£96	0	0	£134	6	0	£230	6	0
Inspector of Lighting, @£15 per annum	48	0	0	67	3	0	115	3	0
Inspector under the Margarine Act, @£10 per annum	32	0	0	44	15	4	76	15	4
Inspector under the Contagious Disease (Animals) Act, @£10 per annum	32	0	0	44	15	4	76	15	4
Inspector under the Foodand Drugs Act, @ £10 per annum	32	0	0	44	15	4	76	15	4
Fee for Burgh Improvement Plans and Reports		…			…		210	0	0
Firemaster, @ £12 per annum	38	8	0	53	14	4		…
				£92	2	4
Less sum paid to account of Firemaster's salary on 6th June 1897				6	0	0
							£86	2	4

With respect to this account Neilson averred that he had, by agreement dated 12th August 1880, been appointed sanitary inspector of the burgh of Falkirk, and that he had in March 1890 received the additional appointment of superintendent of the waterworks. With regard to what afterwards occurred his averments were in the following terms:—“(Cond. 5) The agreement of 1880 was accordingly superseded and terminated. The pursuer was appointed sanitary inspector under the Public Health Act at a fixed salary of £40, and road surveyor at a fixed salary of £10. Instead of contracting for the cartage required in connection with the Cleansing Department as the defenders had hitherto done, they resolved to supply the cartage themselves, and for that purpose appointed an assistant in the cleansing department at a wage of 30s. per week, to whom were assigned the duties of assistant—inspector of cleansing and assistant road surveyor. The pursuer was further appointed to and his services were retained in connection with the following appointments:—The inspectorship of cleansing, the inspectorship of lighting, the fire-mastership, and the inspectorships under the Margarine Act, the Contagious Diseases Acts, and the Food and Drugs Act. The Commissioners resolved to pay to the pursuer regular salaries in respect of each of these appointments. The pursuer was appointed to and his services were retained in connection with the said appointments, on the footing and on the understanding and agreement of both parties that he was to be suitably remunerated by fixed salary for each and all of the same. The defenders, however, postponed the adjustment of the amounts of said salaries, except in the case of the sanitary inspectorship, leaving the adjustment over for subsequent arrangement. The pursuer continued thereafter to discharge the whole of said duties. In July 1891 the pursuer's salary as sanitary inspector was, in consideration of the still increasing extent of the duties falling to be discharged by him as such inspector, increased from £40 to £70 per annum. The Commissioners did not, however, then increase his salary as road surveyor, nor did they fix the salaries for the other duties which the pursuer performed. The pursuer repeatedly pressed the defenders to fix the salaries therefor, but while the defenders did not dispute their liability to remunerate the pursuer, they delayed fixing any definite annual payment to be paid to him. (Cond. 6) On 15th May 1893 the Burgh Police (Scotland) Act 1892 came into operation, and on said date the offices held by the pursuer were reconstituted as follows:—He was re-appointed to the office of sanitary inspector, and was also of new appointed surveyor of the burgh, inspector of cleansing, and inspector of lighting, superintendent of the fire brigade, and master of works. It was then resolved by the Commissioners that his salary as sanitary inspector was to be the same as fixed in July 1891, namely, £70 per annum. With regard to the remuneration to be paid to the pursuer for the said offices other than that of sanitary inspector, the Commissioners resolved that he should be paid by salary, and that the

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amounts of these salaries should be ‘after wards considered.’ The pursuer was also appointed to and his services were retained in connection with the duties of inspector under the Margarine Act, the Contagious Diseases (Animals) Act, and the Food and Drugs Act. This was done on the footing and on the understanding and agreement of both parties that the pursuer should be suitably remunerated for the discharge of the duties falling to him by salary, the amount of which was to be fixed at an adequate figure. (Cond. 7) in or about July 1893 the defenders fixed £27 per annum as the salary payable in respect of the appointments held by him as burgh surveyor and master of works. In January 1897 the defenders fixed the pursuer's salary as firemaster at £12 per annum; but although the pursuer has from time to time asked the defenders to fix the salaries payable to him in respect of the other appointments held by him, and to remunerate him suitably for the duties discharged by him in connection with his appointments, and has frequently brought the matter before meetings of the defenders, and of their committees, the defenders, while not disputing their liability to the pursuer, never actually fixed or paid the same.”

The defender averred in effect that Neilson had been employed at a fixed salary to cover all the appointments he held, and that this salary had been regularly paid.

They pleaded, inter alia—“(4) The salaries sued for being prescribed, the pursuer can prove the constitution and the resting-owing thereof only by the writ or oath of the defenders.”

By the Act 1579, c. 83, it is provided as as follows:—“Item, it is statute and ordained be our Soveraine Lord, with advise of his three estaites in Parliament, that all actiones of debt for house-mailles, mennis ordinars, servands fees, merchantes comptes, and uther the like debts, that are not founded upon written obligations, be persewed within three yeires, utherwise the creditour sall have na action except he either preife be writ or be aith of his partie.”

On 25th July 1899 the Lord Ordinary ( Kincairney) repelled the fourth plea-in-law for the defender and ordered proof.

Opinion.—“This is an action against the Magistrates of Falkirk for payment by them of arrears of salaries said to be due to the pursuer for various public offices held by him under the Magistrates.

The defenders by their fourth plea plead the triennial prescription. Two answers are given to that plea—(1) That the Act 1579, c. 83, does not apply to claims by officers in the public service for their salaries, and (2) that the operation of the Act is excluded because the debts said to be due ‘are founded upon written obligations.’

If I required to decide the second point I think it would be necessary to have before the Court the written obligations in question, which must be the minutes of the Town Council. I think the proper course would be to order production of such minutes, or to grant the pursuer a diligence to recover them, and thereafter to determine whether the application of the Act was excluded on account of them. I think it would be more in ordinary course and more convenient to do so than to allow a proof before answer, leaving the question as to the application of the plea of prescription to arise in the course of the proof, which might be a competent but not a convenient course. But that point would arise only if the pursuer were held to be wrong in his first contention that the claim for arrears of official salary does not fall within the scope of the Act.

The question so raised is general and important, and on considering the argument I am not prepared to sustain the plea. The statute applies to ‘all actions of debt for house maills, mennis ordinars, servands fees, merchantes comptes, and uther the like debts that are not founded upon written obligations.’ The arrears of salary claimed are said to be ‘debts’ like ‘servands fees.’

No case has been quoted in which the Act has been held to apply to salaries for public offices. Persons holding offices of the kind are not, in the ordinary sense of the words servants. They are so in a sense, for they are in the public service. But they do not stand to the magistrates, whose subordinates they are, in the ordinary relation of servants and masters. They are not, strictly speaking, creditors of the magistrates. They are paid out of the public taxes levied by the magistrates for that purpose and other purposes. But it would be a manifest extension of the Act beyond its original scope or object to include such salaries among servants' fees. No doubt the Act has been extended by decisions, but I am not prepared to give this new extension to this old Act, especially considering that if the Act were held to apply in this case, it would apparently apply to every case of employment in any public office, however important.

Several authorities were referred to at the debate, of which Blackadder v. Milne, March 4, 1851, 13 D. 820; and Barr v. Edinburgh and Glasgow Railway Co., June 17, 1864, 2 Macph. 1250, are perhaps the most important. But I do not think they are applicable.

Two older decisions of closer application were quoted by the pursuer. The first is Graham v. The Earl of Leven, July 14, 1709, M. 11,093, in which it was held that a soldier's arrears did not fall under the triennial prescription. There might at the present day be other objections to such an action. But in that case what the Court found was ‘that the three years' prescription does not take place in the case of a soldier's arrears, which is not like an ordinary servant's fee.’ The other case quoted was Nicholson v. Monro, January 20, 1747, M. 11,080, the whole report of which in Morison is in these words—‘Schoolmaster's salary held not to fall under the triennial prescription, a judgment which must have proceeded on the same reason that such a salary ‘is not like an ordinary servant's fee.’ It is said in

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Dickson on Evidence, sec. 490, that the session papers show that the pursuer was a parochial schoolmaster. But the reporter of the case, Kilkerran, seems not to have considered that a material circumstance, and no more appears in his reports. These cases certainly support the view that claims for official salaries are not within the scope of the Act.

For these reasons I shall repel the defender's fourth plea, and before further answer allow a proof.”

The Magistrates of Falkirk reclaimed, and argued—The triennial prescription applied, because there was no doubt that the pursuer was a servant of the corporation. They appointed him and they could dismiss him. There was no distinction between the magistrates and any other employer. The fact that the Magistrates were not personally liable to the pursuer but only bound to pay him out of the rates, did not take the case out of the statute; every scavenger in a town was in the same position. The cases cited by the Lord Ordinary were distinguishable, because in them— Graham v. Earl of Leven, July 14, 1709, M. 11093; Nicholson v. Monro, January 20, 1747, M. 11,080—the pursuers—in the former case a soldier, in the latter a schoolmaster—were not the servants of the defenders, and could not be dismissed by them. Oases much nearer the present were those in which it had been held that the salary of a factor was subject to prescription— Ross v. Master of Salton, February 12, 1680, M. 11,089; Smith's Children v. Earl of Winton, December 3, 1714, M. 11,096; Robertson v. Marquis of Annandale, December 10, 1749; 1 Paton, 293; Grubb v. Porteous, March 3, 1835, 13 S. 603. (2) The argument that this was a case of written obligation was not supported by any averment on record. All that was suggested was a minute of the Town Council recording the pursuer's appointment. If that was to be founded on, it ought to have been set forth on the record; but in any event it did not satisfy the written obligation required by the statute, which must be bilateral—Bell's Comm. i. 332; North British Railway Company v. Smith Sligo, December 20, 1873, 1 R. 309; Chalmers v. Walker, 1878, 6 R. 199; Miller v. Miller, June 10, 1898, 25 R. 995.

Argued for the respondent—It had been decided that the Act was not to be extended to cover new cases— Blackadder v. Milne, March 4, 1851, 13 D. 820; M'Kinlay v. M'Kinlay, December 11, 1851, 14 D. 162. Thus “merchants comptes” have been held confined to shopkeeper's accounts, and not extended to wider mercantile affairs— Laing v. Henderson, November 10, 1871, 10 Macph. 74. So “servands fees” should be construed as at the date of the statute, when it would never have been held to cover the case of a public official like the present pursuer. He is not a servant of the Magistrates; both he and they are part of the statutory machinery for local government. The magistrates in appointing do not act as master to servant, but as a public body who are under an obligation to appoint an official. If he is dismissed by them he can appeal to the Local Government Board, who would decide whether his dismissal was justifiable; whereas if he were a servant the sole question would be whether in his dismissal the terms of the contract had been observed. (2) The Magistrates are barred from pleading prescription, because by failing to fix the pursuer's salary they induced him to allow the question to lie over until the three years had elapsed. That had been held to exclude the statute— Caledonian Railway Company v. Chisholm, March 17, 1886, 13 R. 773. (3) The debt was founded on a written obligation contained in the minutes of the Town Council. It was not necessary for the pursuer to have the obligation in his hands when he came into Court; that might be, as it was here, impossible. He was entitled to prove that such an obligation existed. It was not essential that it should be bilateral— Blackadder v. Milne, March 4, 1851, 13 D. 820.

At advising—