Scottish Court of Session Decisions

This was an appeal at the instance of Gilbert Harper, 70 Mill Street, Rutherglen, from a deliverance of the Sheriff-Substitute ( Mitchell) at Glasgow upon a verbal application by the appellant for parochial relief.

The Poor Law (Scotland) Act 1845 enacts—section 73—“If relief shall be refused to any poor person who shall have made application for relief, it shall and may be lawful for such poor person to apply to the sheriff of the county in which the parish or combination from which such poor person has claimed relief… is situate, and the said sheriff shall forthwith, if he be of opinion that such poor person is, upon the facts stated, legally entitled to relief make an order upon the inspector of the poor or other officer of such parish or combination directing him to afford relief to such poor person in the meantime until such inspector or other officer shall, on or before a day to be appointed by the said sheriff… give in a statement in writing showing the reasons why the application of such poor person for

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relief was refused, which statement the said sheriff shall afterwards appoint to be answered, and shall, if required, nominate an agent to appear and answer on behalf of such poor person, and shall further if necessary direct a record to be made up and a proof to be led by both parties.”

By Act of Sederunt 12th February 1846 it is enacted—section 1—“That where relief has been refused by any parish or combination to any poor person who shall have made application for relief, such poor person may apply to the sheriff of the county without the intervention of an agent, and either verbally or in writing.” Section 2—“That the sheriff shall forthwith proceed to consider the facts stated by such poor person, and if he be of opinion upon the facts as stated that such poor person is not legally entitled to relief he shall at once pronounce a deliverance to that effect.” Sec. 6—“That where” the procedure following on a statement lodged by the inspector, as prescribed in section 73 of the Act, has been followed, “the sheriff … shall proceed to pronounce judgment in the cause, finding substantively such poor person to be legally either entitled or not entitled to relief.”

Relief having been refused to the present appellant by the Parish Council of Rutherglen, he applied verbally to the Sheriff-Substitute, who on 24th September 1903 pronounced the following interlocutor:—“The Sheriff-Substitute of Lanarkshire having heard the oral statement made on behalf of Gilbert Harper, 70 Mill Street, Rutherglen, complaining against the Inspector of Poor of the parish of Rutherglen for refusing or not considering his application for relief, and having also heard the agent for said inspector as to the reasons for such refusal or delay—Finds upon the facts stated that the said applicant is not shown to be legally entitled to relief, and therefore declines to make the order applied for.”

Note.—“Among the facts stated was this, that in August last the Parish Council considered a previous application for applicant, and refused it on the ground that his mother had then in possession a substantial sum of money, being about £80, part of a sum of £150 or thereby obtained as compensation for the death of her second husband. Although she was married a third time, and although the applicant was out of her house after March 1903, and supported by a married sister, the Sheriff-Substitute does not think he can assume that the money was all spent, so that his mother was unable to support him.

This application was made to the Parish Council on 8th September, only a month after the previous one, and will be before the Council on 8th October.”

Against this interlocutor the applicant appealed to the Court of Session by lodging a note of appeal in common form.

The respondents objected to the competency of the appeal.

No record had been made up in the application. There was no note of evidence.

The Sheriff-Substitute's interlocutor and note and the note of appeal formed the whole process before the Court.

Argued for the respondent—The appeal was incompetent. The Act of 1845 and the Act of Sederunt of 12th February 1846 prescribed the procedure to follow a finding by the Sheriff on a verbal application that the applicant was not entitled to relief, though in the case of a finding to the contrary there were precise provisions for the making up of a record. There could be no appeal from a deliverance on a verbal application. In the absence of a record there was nothing to enable the Court to review the Sheriff's deliverance. Proceedings in the Sheriff Court in which there were no written pleadings could not be reviewed. In the only case in which an appeal had been taken without a record having been made up, the appeal had been held incompetent— Strain v. Strain, June 26, 1886, 13 R. 1029, 23 S.L.R. 739.

Argued for the appellant—If an applicant was found entitled to relief after a record had been made up, no objection could be taken to the competency of an appeal at the instance of the inspector of poor. The respondent's contention would lead to the inequitable result that an appeal might be taken from an adverse deliverance at the instance of one party but not at the instance of the other. An appeal had been held competent from a Dean of Guild Court in a case in which there was no record— Allan v. Whyte, December 20, 1890, 18 R. 332, 28 S.L.R. 252. The appeal was competent at common law, and it was not excluded by any statute.

Counsel for the respondent did not present any argument on the merits against the appellant's right to parochial relief.