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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adamson v. Knox and Beattie [1867] ScotLR 3_288 (7 March 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0288.html
Cite as: [1867] SLR 3_288, [1867] ScotLR 3_288
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SCOTTISH_SLR_Court_of_Session
Page: 288↓
Court of Session Outer House.
(Before
v.
Facts:
A relieving parish sued the parish of a pauper's birth, and a parish in which the birth parish alleged that a residential settlement had been acquired. The Pursue did not himself allege that there was any settlement in the alleged pariah of residence. Objection to the relevancy of the Summons on that ground repelled (per Lord Kinloch and acquiesced in).
The inspector of the City Parish of Glasgow sued the inspectors of the parishes of St Ninian's and of Barony for relief of the support of certain paupers. He alleged in his summons that the husband and father of the paupers was born in St Ninian's, but he made no averment of a settlement of any kind in Barony. The condescendence, however, contained the following statement:—
“Cond. 5. It is admitted by St Ninian's that the deceased James Davie was born in that parish, but it is maintained that at the time of his death he was in possession of a residential settlement in Barony, which that parish denies. According as this fact shall be determined in the present process, either St Ninian's or Barony will be bound to repay the pursuer's advances, and relieve the City parish of Glasgow of the future support of the pauper. In no point of view has the pauper a settlement in the said City Parish. The pursuer does not think it necessary to give the details of the residence of the said James Davie prior to his death, as these will fall to be set forth by the defenders in their defences.”
In these circumstances Barony stated the following plea-in-law:—
“The pursuer's action, as against this defender, is irrelevant, in respect the summons contains no averment to warrant its conclusions against him.”
The Lord Ordinary (
“The present action is raised by the City Parish of Glasgow against the parishes of St Ninian's and Barony, for the purpose of fixing on one or other of them the support of a widow pauper and her children. It is clear that the City Parish is itself not chargeable. No ground of chargeability against that parish is suggested from any quarter. The settlement is admittedly that of the pauper's deceased husband. Admittedly he was born in St Ninian's; and if no other settlement appears, St Ninian's is his parish of settlement. But it is alleged by St Niman's that anterior to his death he had acquired a residential settlement in Barony. The parish of St Ninian's offers to establish the fact. The question therefore lies between St Ninian's as the admitted birth settlement, and Barony as the alleged settlement by residence.
The Lord Ordinary has no doubt that the question has been competently raised by the City Parish calling the two others into the field in order to dispute their liability. This is the convenient form which has been adopted in modern practice for now a good many years.
But the Barony Parish pleads as a preliminary defence that the action has been irrelevantly directed against it, inasmuch as no positive statement has been made by the pursuer that the residential settlement was within that parish. What is averred by the pursuer is that it is ‘alleged’ that the residential settlement is within Barony; and accordingly St Ninian's not only avers this, but offers to prove it. It appears to the Lord Ordinary that this is enough. If the pursuer had committed himself to a positive statement that the residential settlement was in Barony, it might have been said with more justice that this was a reason for calling Barony and no other. What the pursuer does, and in the Lord Ordinar's view does properly, is to call the birth parish (admittedly liable if no other is), and also to call the parish as that against which the birth parish avers a residential settlement. The matter will then be properly controverted between these two parishes.”
Counsel for Pursuer— Mr Thomson. Agent— William Burness, S.S.C.
Counsel for St Ninian's— Mr Lamond. Agents— J. & J. Turnbull, W.S.
Counsel for Barony— Mr Burnet. Agent— John Thomson, S. S.C.