same popular objection as in England, that there was a distinction between the master and servant prejudicial to the latter (i). The value of this objection has been already adverted to.

An objection to the ordinary tribunal of justices existed with greater force in Scotland than in England, owing, in some measure at least, to the absence in Scotland of stipendiary magistrates.

On the other hand, the sheriffs' substitutes of the counties and districts in Scotland, being ex officio justices of the peace, exercised in that character jurisdiction in cases of master and servant, in addition to their ordinary civil and criminal jurisdiction, and the ordinary justices consulted with the sheriffs' substitutes as stipendiary magistrates.

In Scotland the state of the law with reference to the arrestment of wages gave rise to considerable dissatisfaction, and formed part of the vexed question of the relationship of master and servant.

"Arrestment of wages" is the right that exists in Scotland, in every creditor holding a civil decree or judgment, to attach the funds or moveable property of his debtor in the hands of a third party, corresponding to the process of attachment which existed in the city of London, and subsequently applied to England (k).

(i) The popular view taken of the law on this subject is thus given by Mr. George Newton, a Glasgow potter: "The inequality (of the then existing law) consists in this, that a breach of contract of service on the part of a workman renders him liable to a criminal prosecution, while a breach of contract on the part of the employer only renders him liable to a civil action for damages; the process also by which the one is brought before the court is very different indeed to that by which the other is brought before

the court; while the servant may be dragged as a criminal to the bar, and not unfrequently is dragged there in that way; while he may be taken there manacled, the employer is taken into court as a gentleman; he is simply summoned there and treated with the respect which is due to mankind generally."-Report of Committee of House of Commons on Master and Servant, 1866.

(k) See the 23 & 24 Vict. c. 126, s. 28, et seq.

The process in Scotland and its effects may be thus stated in popular language:

The creditor, having obtained his decree, proceeds by a process termed "forthcoming" (that is to say, making the subject forthcoming) to call the party holding the funds or moveable property into court to ascertain what he has, in order that it may be paid over in liquidation of the debt. But besides having the privilege of arresting in this way upon a judgment or decree, the creditor generally has the further privilege of using such power of arrestment upon the "dependence" of any suit; that is to say, along with the writ or summons for bringing the parties into court in a civil case there is combined a warrant to arrest, so that the property arrested remains in the hands of the third party until the issue of the suit, and judgment is given. This right, belonging to all civil creditors, is limited by statute in the case of workmen's wages. The statute constituting the Small Debt Sheriffs' Courts in Scotland (1 Vict. c. 41) declares (sect. 7), that workmen's wages are not arrestable, except so far as there may be a surplus after what is requisite for maintenance; and the statute 8 & 9 Vict. c. 39, abolished arrestment of wages on the dependence of Sheriff Small Debt actions. The practice under the 1 Vict. c. 41, s. 7, of some courts where "forthcomings" are brought on arrestment of workmen's wages, is to award to the creditor one-half the wages; in other courts a more fluctuating rule is followed, more favourable to the debtor.

Apart from objections of political economists to a system which leads to credit, these arrestment proceedings against workmen, miners and others were so annoying, "that when once a man gets into the position that his wages are arrested, it generally ends in his leaving the locality and going elsewhere” (1).

(1) Evidence of W. Burns, Esq., before the House of Commons Committee in 1866.

CHAPTER II.

LORD ELCHO'S MASTER AND SERVANT ACT, 1867.

It was under the circumstances and condition of the law stated in the preceding chapter that the House of Commons, in 1865, appointed a select committee "to inquire into the state of the law as regards contracts of service between master and servant, and as to the expediency of amending the same."

This committee was re-appointed in 1866, with Lord Elcho as chairman, and reported to the House that they had unanimously agreed upon the following resolutions:

"1. That the law relating to master and servant as it now exists is objectionable.

"2. That all cases arising under the law of master and servant should be publicly tried, in England and Ireland before two or more magistrates or a stipendiary magistrate, and in Scotland, before two or more magistrates or the sheriff.

"3. That procedure should be by summons in England and Ireland, and by warrant to cite in Scotland, and failing appearance of defendant in answer to summons or citation, the court should have power to grant warrant to apprehend.

"4. That punishment should be by fine, and, failing payment, by distress or imprisonment.

"5. That the court should have power, where such a course is deemed advisable, to order the defendant to fulfil the contract, and also, if necessary, to compel him to find security that he will duly do so.

"6. That in aggravated cases of breach of contract, causing injury to person or property, the magistrates or

sheriff should have the power of awarding punishment by imprisonment instead of fine.

"7. That the arrest of wages in Scotland in payment of fines should be abolished.

"8. That, a suggestion having been made to the committee, viz., that in all cases of breach of contract between master and servant, it should be competent to examine the parties to the action as in civil cases, although the offence be punishable on summary conviction, the committee are not prepared themselves to recommend the adoption of such a principle, involving, as it does, departure from the law of evidence in such cases as now settled" (a).

(a) Having had some conversation with Lord Elcho, and also with Mr. Gathorne Hardy, on several points of the then existing law, and more especially in reference to orders for the performance of contracts, I, at Lord Elcho's request, embodied my views in a letter to his lordship. After stating the general features of the law as it then stood, I said: "The alterations I venture to suggest are as follows:-With respect to claims by masters against men, it seems desirable to get rid of the existing distinction between a mere wrongful breach and a wilful or guilty act. The distinction is seldom understood by masters or men, and not always by magistrates. As a necessary consequence of getting rid of this distinction, the power of direct imprisonment must cease for a first offence. The adjudication on a first complaint, if proved, should be either an order to return to work, with or without a fine [or a fine] to a limited amount, and with or without costs. The fine or costs, or both,

if ordered, to be enforced by imprisonment on failure to pay within a given time.

"The disobedience of the order to return to work, or a second breach under the same contract, to be punishable by increased fine, or by direct imprisonment for a limited time, in the discretion of the magis

trate.

"There is another mode of enforcing the performance of contracts which I should like to see introduced, as am confident it would work well. I would give power to the magistrates, in cases where the defendant had not returned to his work at the time of the hearing of the summons, to call upon him to enter into a recognizance, with or without sureties, in a limited amount, for the future performance of the contract; and I would confer the same power in all cases of a second complaint, or for disobeying an order of the court. The recognizance in any case to be either in addition to or in substitution for a fine.

"I think I should even go so far

The act of 30 & 31 Vict. c. 141, intituled, Master and Servant Act, 1867," and sometimes called