Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. I.

To what Causes this Jurisdiction extends.

Journeymen Taylors in Edinburgh, Pursuers,
v.
The Incorporation of Taylors in Edinburgh, Defenders

Date: 17 November 1770
Case No. No 93.

Action for regulating the hours of working, &c. incompetent before the Court of Session prima instantia.

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In the year 1769, certain journeymen taylors brought a process of declarator before the Court of Session, concluding to have it found and declared, 1mo, That the hours of work that are daily exacted of them and the other journeymen taylors are rigorous and oppressive; which, therefore, should be shortened; and that the Court should ascertain how many hours a-day they should be obliged to work, and what intervals of respite they should be oblowed; 2do, That the shops of the masters being too small, they should be obliged to enlarge them, &c.

In defence to this action, the master taylors stated, 1mo, That the pursuers had no title to carry on the action; 2do, That it was not competent before this Court in the first instance; 3tio, That it was barred by a former judgment.

The Lord Ordinary, at the first hearing of the cause, adverted in particular to the two first of their defences, and pronounced this interlocutor:

“Sustains the defence offered on the part of the defenders; and, in respect thereof, dismisses the process as incompetent.”

But having afterwards taken the cause to report upon informations, in support of the title and competency of the action;

The pursuers pleaded,

It was the established law, and agreeable to the practice, that journeymen taylors, under no contract with any master, were compellable to work upon their being required, and were punishable by imprisonment in case they refused. Upon the supposition, therefore, that this was the law, any one journeyman had a title to have the terms upon which he was compellable to work ascertained secundum bonum et æquum, as he might otherwise be subjected to distress, and deprived of his personal liberty for refusing to work upon terms unreasonable and oppressive.

As to the competency, though the magistrates of Edinburgh had a cumulative jurisdiction, yet they had no privative jurisdiction in cases of this nature; and as the present was not a question of police but of right, the jurisdiction of the Court of Session could not be taken away but by express statute.

The defenders pleaded,

If actions, such as the present, at the instance of individual journeymen were sustained, there would be no end to the abuse; for, upon the supposition that the journeymen should obtain a judgment upon any one of the particulars complained of, that would bind the masters as a body corporate; but if the contrary should follow, any decision obtained would be effectual only against the individuals concerned; so that the masters would have the same battle to fight over again with every single journeyman, and that too upon every triffling article of complaint that might capriciously be brought.

As to the competency, if there was any grievance or ground of complaint, the magistracy of Edinburgh was the proper jurisdiction to apply to for redress. The statute law gave to Justices of Peace and other magistrates the power of regulating workmen's wages within burgh; the magistrates of Edinburgh had immemorially exercised that power; and though their regulations and judgment in matters of this nature might be reversed by suspension or otherwise, yet they could not be brought under the cognizance of the supreme Court in the first instance.

The majority of the Judges were of opinion, that this being a matter of police, the action was incompetent. They were, however, clear, that the journeymen should be allowed the hours they asked; the statute 8th Geo. I. c. 17., gave that indulgence to the journeymen taylors in London and Westminster, and regulated their hours of working to be from six in the morning to seven at night, with the interval of one hour for dinner; and they thought that the rule here should be the same.

17th November 1770. An interlocutor was accordingly pronounced, “Superseding farther procedure in the cause till the first Tuesday in February next, without prejudice to the pursuers, in the mean time, to apply to the magistrates of Edinburgh for redress of the several articles complained of in their summons.”

The journeymen made an application accordingly; and the masters having consented, the magistrates made an act, appointing the hours of work to be the same as in England, viz. from six in the morning to seven at night, with the interval of an hour for dinner.

Lord Ordinary, Monboddo. For the Journeymen, Maclaurin. For the Masters, Lockhart, Rae. Clerk, Ross. Fac. Coll. No. 46. p. 133.