as an action of damages for negligence and want of skill by LANARKSHIRE. an unsuccessful pursuer against her law agent.

Fowler v
M'Pheat.

For defender-Mr. JAMES A. REID, Airdrie.

W. G.

THE GLYCO METAL COMPANY, LIMITED, Pursuers;
D. ALLAN & SON, Defenders.

No. 48. LANARKSHIRE.

Limited v Allan & Son.

Small Debt Court-Expenses-Agent's fee when debt Glyco Metal Co.,
paid before calling.-Held that where a pursuer
outside the jurisdiction of the Court took out,
through a law agent, a summons for debt, which
was returned to the Court for calling, but the debt
was paid before the calling, the debtor must be
found liable for the agent's fee, as the agent would
have to appear to prevent a possible decree of
absolvitor if the defender appeared.

The following judgment by the Sheriff-Substitute (DAVIDSON) in the Small Debt Court explains itself:

In this case the pursuer resided outwith the jurisdiction Jan. 14, 1907. of this Court, and, by a universal and very proper practice, Sheriff DAVIDSON he is entitled to be represented by an agent, and to recover his agent's fee from the opposite party if he is successful. After the summons had been served and the principal copy returned to the Sheriff-clerk, the defender called on the pursuer's agent and tendered the sum sued for, plus the expense of the summons. This the pursuer's agent declined to accept, demanding in addition a fee for his appearance when the case should be called in Court; and the question between the parties is whether in these circumstances he was in right of that fee.

The Small Debt Acts provide only for an agent's fee in case of appearance in the cause. The crucial question on which the decision in this case rests is therefore whether appearance in Court had been rendered necessary to the pursuer in his own interests by the default of the defender. By hypothesis the defender was in fault in failing to pay before having been summoned, and it is reasonable that the pursuer should not be penalised for protecting himself against any possible risk which the defender's default might cause him. The summons having been returned would of necessity be called in Court, and the defender would then have it in his power, if the pursuer or his agent did not attend, to obtain absolvitor in absence. It is quite true that with the money already in his pocket a barren decree such as this would not injure the pursuer, but the defender might ask for expenses and have them awarded to him, in which event the pursuer would probably hear no more of the matter until he received a charge to pay the defender's

LANARKSHIRE. costs. No doubt he could still set himself right by having Glyco Metal Co., himself reponed by means of a sist, but to do so he would

Limited v

Allan & Son.

Jan. 14, 1907.

require to lodge caution, and I cannot think it fair that he should be put to the risk of so much possible annoyance and Sheriff DAVIDSON. litigation. It appears to me to be the sound view that the pursuer is reasonably entitled to appear at the calling of the case for his own protection; and that, as the appearance has been rendered necessary by the failure of the defender to pay his debt timeously, a fee for that appearance is a fair charge against the latter.

No. 49. LANARKSHIRE. Morgan v Boyd.

Jan. 24, 1907.

For pursuers-Mr. FRED. J. MACKENZIE, Glasgow.
For defenders-Mr. ALLAN, Glasgow.

HENRY MORGAN, Pursuer; GEORGE BOYD, Defender. Master and servant-Wages-Truck Act-Setting off wages against loan.-Held (following Williams, 43 S.L.R. 881) that, as under the Truck Act wages earned or payable to an artificer must be paid in current coin, a master was not entitled to set off against wages money which he had previously lent the servant.

Henry Morgan, working painter, sued George Boyd, painter and decorator, Glasgow, in the Small Debt Court there for £5 18s. 9d. due for wages. Boyd admitted that these wages were due, but claimed to set off against them a counter claim amounting to £7 15s., including, inter alia, £6 said to have been lent to the pursuer over two years before. The SheriffSubstitute (DAVIDSON), without allowing a proof, repelled the counter claim and granted decree, giving his opinion as follows:

The

After a careful perusal of the judgment of the House of Sheriff DAVIDSON. Lords in the case of Williams and Others v North's Navigation Collieries, Limited, 43 S. L. Rep. 881, I have come to the opinion that the defence in this case is irrelevant. pursuer sues for wages due. The defender admits the debt, but proposed to set off against it on account for materials and work done on a dairy, and also a sum of £6 for money lent. The pursuer founds on the 3rd section of the Truck Act, 1831, and I think he is right. In Williams' case the employers were in a stronger position than the defender. They did not merely found on a claim which was disputed, they produced a judgment debt in their favour, but they were not permitted to set it off against a claim for wages. The opinion of Lord Atkinson, with which Lord Robertson concurred, is very clear and decisive. It has been urged " -I quote from Lord Atkinson-" that such a deduction as this does not come within the mischief aimed at by the

Truck Acts; that these statutes were merely designed to LANARKSHIRE. prevent the payment of workmen's wages in equivalents for Morgan v Boyd. cash as distinguished from cash itself. It may well be that Jan. 24, 1907. this was the main purpose and object of this legislation, and Sheriff DAVIDSON. that in this section the Legislature had used language which extends beyond the mischief aimed at, and reaches harmless transactions or practices not within its spirit. Still, there is no ambiguity in the words used in the section. They are precise and clear, and require that the entire amount of the wages earned shall be "actually paid. actually paid . . . in the current coin of the realm, and not otherwise. It cannot, I think, be contended that the withholding by the master from the workmen of a portion of the wages earned by the latter against his consent is, or could be held to be, a payment by the master to the workman of that very same portion. It is a refusal to pay, from the not unnatural reason that an equivalent sum is due to the master from the workman. The requirements of the statutes have therefore not been observed in this case; the wages earned have not been paid." And then Lord Atkinson proceeds to show that, although in the case he was deciding there could be no question of the liability of the workman, yet when there was such a question (as there is in this case), to allow the employer to retain the wages until such a question came to be judicially decided was a violation of the principle of the Truck Acts. Williams' case seems to me to be absolutely conclusive of the failure of the defence.

For pursuer Mr. ROBERT GRIERSON, Glasgow.

For defender-Mr. BAIRD (Messrs. BAIRD & STIRLING),
Glasgow.

SHERIFF COURT OF ELGINSHIRE.

ROTHES TOWN COUNCIL, Petitioners; ELGIN COUNTY

COUNCIL, Respondents.

and

No. 50. ELGINSHIRE.

Rothes Town

Burgh-Extension of boundaries-Burghal character of Council Elgin
addendum-Expenses.-A burgh having plenty of County Council.
unbuilt-on ground within its boundaries petitioned
for inclusion of about four acres containing a dis-
tillery and about an acre of unbuilt-on ground.
The distillery was seated there because ground
for it could not be got in the burgh,
was accommodated by the burgh with
age and roads, but not with water.
that, on the whole, the ground was of a burghal
character, and should, in the circumstances, be
included in the burgh, notwithstanding the opposi-
tion of the Council of the county in which it was
then situated. Held that no expenses should be
allowed to either party.

sewer

Held

The following was the judgment of the Sheriff

ELGINSHIRE. Principal (WILSON) by whom the petition

Rothes Town Council v Elgin County Council.

Feb. 28, 1907.

Sheriff WILSON,

heard:-
:-

was

ELGIN, 28th February, 1907.-The Sheriff, having heard the agents for the pursuers and for the respondents (the County Council of Elgin), and having considered the proof, productions, and whole process, and all the circumstances of the case, finds that the area of ground, extending to about 4 acres, situated at the north-west corner of the existing burgh of Rothes, belonging to, and occupied by, the Speyburn Glenlivet Distillery Company, Limited, and others, being the subjects delineated and coloured pink on the plan No. 27 of process, signed by R. B. Pratt, architect and surveyor, Elgin, and dated 21st February, 1907, and the boundaries of which are specified in the minute for the pursuers No. 28 of process, properly belongs to, and ought to form part of, the burgh of Rothes, and should be included therein; and accordingly revises, extends, and defines the boundaries of the burgh of Rothes to the effect of including therein the whole area within the following boundaries, viz. [here follows a description-all as shown and delineated on the plan No. 7 of process; grants warrant to record the application and the deliverance therein in the Sheriff Court books; and finds no expenses due to or by either party. JOHN WILSON.

:

Note. The Town Council of the burgh of Rothes asked for an extension of the boundaries of the burgh to the extent of including therein a small area of ground, extending to about 4 acres, situated at the north-west corner of the existing burgh. The proposed extension would include within the burgh the Speyburn Distillery, hitherto situated in the county, and which is entered in the valuation roll at a rental of £275. The only persons interested in the area, as superiors, feuars, proprietors, or occupiers, seem to be Lady Seafield, Mr. Mitchell-Gill, and the Speyburn Distillery Company. The distillery feu extends to 3 acres, and the remainder is unbuilt-on land. There is no objection to the granting of the application from any of these interested as aforesaid in the area referred to, the only opposition being that of the County Council of Elgin.

The existing boundaries of the burgh were fixed by the Sheriff in April, 1884. The population at that date was 1382, and is now estimated as between 1600 and 1700. The Speyburn Distillery, which belongs to the Speyburn Glenlivet Distillery Company, Limited, was erected in or about 1898 on unbuilt-on ground, partly on the estate of Auchinroath, which lay just outside the north-west corner of the burgh. It appears that the burgh of Rothes is wholly, or almost wholly, situated upon the Seafield estate, and that

ELGINSHIRE.

Council Elgin

when the distillery company wished to acquire a site for their distillery no part of the Seafield estate could be obtained Rothes Town for the purpose within the burgh. Accordingly, the dis- County Council. tillery company had to seek a site outside the existing Feb. 28, 1907. burgh, and their choice of the area now occupied by their Sheriff WILSON. distillery was probably determined by the double consideration that the site referred to immediately adjoined the burgh boundary, and that a suitable supply of water was available to them there. There is ample free building space available for dwelling-houses within the existing burgh. Indeed, the present population represents only about 28 persons per acre, the existing burgh area being about 565 acres, of which only 75 acres have been built on. The Speyburn Distillery is so situated that practically the whole of its traffic must pass over the roads within the burgh, which are under the control of the Town Council; and one bit of road, representing a length of 446 yards or thereby, is almost exclusively used by the distillery company for their traffic. The portion of the road referred to has never been well bottomed, and the result is that it requires extensive repairs by reason of the heavy traffic to and from the distillery. The estimate of £18 8s. per annum, which was made by the burgh road surveyor as applicable to the 446 yards referred to, may perhaps be high, but there is no doubt that the upkeep of the road is a considerable burden upon the burgh, and the heavy expense is occasioned by the traffic to and from the distillery. At present the proprietors of the Speyburn Distillery Company pay to the County Council in respect of the distillery subjects £17 9s. 5d. of rates as owners and occupiers, whereof £11 14s. 11d. represents the road assessment. The only bit of county road over which the distillery traffic passes at present is about 100 yards in length, extending from the gate of the distillery to the burgh boundary, and the maintenance of this stretch of the road is admittedly trivial. Accordingly, so far as the road assessment is concerned, the county under existing circumstances seems to me to derive rates from the distillery far in excess of any expenditure which it can have to make in connection with the use of the county roads by the distillery.

Then the County Council provides no facilities for the disposal of the sewage of the Speyburn Distillery. The Speyburn Distillery Company are jointly interested, along with three other distilleries situated within the burgh, in certain purification works, also within the burgh, and situated about 700 yards from Speyburn Distillery. At these purification works the burnt ale of the four distilleries referred to is treated. The other residual products from the Speyburn Distillery pass through the sewerage system of