Scottish Court of Session Decisions

The parish of Lanark consists of the royal burgh of that name, and a considerable landward district. The poor of the burgh and of the landward district had been in use to be separately provided for, but the magistrates and other parties in the burgh holding that the whole parish ought to be dealt with as one district with reference to the administration of the poor-laws, a process was instituted for trying that question in name of a pauper resident in the burgh, for whom a claim for relief was made to the kirk-session and heritors of the landward parish, and to the magistrates of the burgh, jointly. This claim was rejected by the heritors and session on the ground that the paupers had no settlement in the landward parish; and it was, on the other hand, only granted by the magistrates to a partial extent, on the ground that the landward parish was equally liable with the burgh for the support of all poor within the general bounds. Advocations of both judgments were thereupon brought in name of the pauper, and having been conjoined, the discussion in this Court was carried on between the magistrates on the one hand, and the landward heritors on the other. The opinion of the whole Judges was taken together on this cause and another, involving a similar question as to the burgh of Dunbar; and in conformity with the views of a majority of the Court, an interlocutor was pronounced (July 4, 1833), dismissing the advocation against the kirk-session and landward heritors, and, in the other advocation, remitting to the magistrates to furnish the pauper with the usual allowance. ¹ A similar judgment was pronounced in the Dunbar cause, finding that the administration of the poor in the burgh and the landward parish was separate and distinct; but an appeal having been taken against the judgment of the Court in that cause, it was reversed by the House of Lords, who found that the administration must be joint. ² An appeal had also been entered in the Lanark cause, but it had been allowed to drop; and now an action of declarator was raised at the instance of various parties in the burgh, directed against the kirk

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¹ Ante, XI. 879.

² April 10, 1835; 1. S. M'L. 134.

session and landward heritors, and also against the magistrates, and concluding to have it found and declared that the subsisting system of separate administration was contrary to law, and that the maintenance and provision for the poor ought to be effected by a common administration and assessment for the whole parish, without distinction between burgh and landward district, and also to have the defenders respectively prohibited from making separate lists of poor referable to the two districts, and from following a separate system of provision and administration. The pursuers of this action were of three classes:—1st, Proprietors in the burgh; 2d, Inhabitants liable in assessment for the poor; and, 3d, Paupers belonging to the burgh entitled to relief. As a preliminary defence the landward heritors pleaded that the pauper pursuers (Joseph Glaister, Thomas Lightbody, and Widow Gowdie) had no title to insist in such an action as the present; and they also maintained that the decision in the former case rendered the matter res judicata.

The Lord Ordinary pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties, finds, that though some of the statements in the summons may have a more particular reference to the rights and interests of some classes of the pursuers, there are sufficient facts averred, and subsumptions in law set forth in it, to support the title and interest of the pursuers, Joseph Glaister, Thomas Lightbody, and Widow Gowdie or Whiteford, to insist in the conclusions of the action: Therefore, repels the first defence, stated as preliminary; finds, that the plea of res judicata, though prejudicial, is a defence on the merits of the case, and reserves the same.”

The landward heritors having reclaimed, the Court expressed a desire to know whether the pauper pursuers were actually receiving relief. The cause was accordingly delayed to ascertain this, and it appeared that these parties were at present in receipt of an allowance from the burgh.