United Kingdom House of Lords Decisions

In the Lanark cause Lords President, Balgray, Gillies, Corehouse, Fullerton, and Moncreiff delivered this opinion:—

“On considering all the acts of parliament and proclamations of the privy council on the subject of assessments and maintenance of the poor, we are of opinion that there can be but one list or roll of poor in any parish, whether entirely burgal, entirely landward, or partly burgal and partly landward; and that there cannot be two lists or rolls, one of burgh poor and the other of country poor, but that they are all indiscriminately the poor of the parish, and entitled to relief out of the whole funds of the parish.

Specific rules are laid down for assessments in the cases of parishes wholly burgal or wholly landward; but we do not find any specific rule for levying assessments for the poor in mixed parishes, such as Lanark; and by the returns laid before us, which were taken in the case of Parker v. Buchanan, we observe that the practice is different in different parishes of a mixed character; and therefore, as no rule for such parishes is laid down by parliament, we are of opinion that each mixed parish ought to continue to follow the rule of assessment used and wont.

If any such practice has existed in Lanark, we think it ought to be continued; if there be none, which seems to be the fact, we think that, having fixed that there can be but one list or roll of poor, that the heritors, kirk session, and magistrates ought to be left, in the first instance, to try to arrange what in the circumstances of their parish will be the most fair and equitable mode of laying on the assessment.

We observe, that in the case of Scott v. Fraser, 19th January and 5th March 1773, (observed by

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Lord Hailes, p. 523,) the Court authorized the assessment to be levied according to the real rent.

This was in a case very similar, viz., the West Kirk parish of Edinburgh, in which, though there is not a royal burgh, there are burghs of barony and regality; and we rather think, that this is the only fair and equitable rule in all cases of parishes partly burgal and partly landward, and is analogous to the rule now fixed by the House of Lords for building kirks, by the cases of Peterhead and Crieff.”

In the present case their Lordships delivered this opinion:—

“Agreeably to the opinion we have given in the case of Lanark, that, as there is no rule laid down by any of the acts for mixed parishes, partly landward and partly burgal, each parish of that description ought to continue to follow the rule of assessment used and wont; and therefore, as there has been a rule acted upon in the parish of Dunbar for a great length of time, we are of opinion that this rule of assessments ought to be continued.”

In the Lanark cause Lord Craigie gave this opinion:—

“The general points of law which are the subject of the present consultation are of great importance, and attended with considerable difficulty; but upon the grounds stated in the opinions already given, it does not appear that in the actions now depending any conclusive or satisfactory determination can at this time be given with regard to them.

In the parish of Lanark no assessments for the support of the poor were imposed until the year 1814, the whole expence being defrayed out of certain funds, real and personal, under the management of the kirk

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session. At that time, although contrary to the will of the donors, where the funds had been derived from individual endowments, and in all cases in opposition to the proclamation of the Scots privy council, (proclamation, 11th August 1692,) the whole had been exhausted.

From 1814 until the commencement of the present litigation, it is on all sides agreed that assessments were imposed and levied separately in the burgh and in the landward district of the parish; the inhabitants of the burgh, however, as distinguished from the proprietors and tenants of land or houses, being exempted.

In 1828, in the name of Jean Ferrier, one of the paupers residing in the burgh, but at the expence of the magistrates, proceedings were held before the magistrates and in the kirk session of the parish, in which the magistrates declared their willingness to defray one third of the expence necessary for the pursuer's maintenance, while the kirk session refused the application in toto, on the ground of the pauper's residence being within the burgh.

Against these proceedings there are two advocations, both in the name of the pauper, one directed against the kirk session and heritors in the landward district, and the other against the magistrates of the burgh. In the answers given in for the magistrates, instead of opposing the prayer of the application, they, as might be expected, agree to every thing which had been proposed in the name of the pauper, viz., that the whole poor in the parish ought to be supported in the same manner. Whether the inhabitants

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in the burgh, quà such, were again to be exempted, is not expressly said, but they have not been called as parties.

In these circumstances, I consider the proceedings as irregular in every point of view. Under the authority of the usage, ever since an assessment was laid on, the paupers within the burgh have been maintained out of the funds of the burgh; and unless at the suggestion of the magistrates, the pursuer had no occasion to interpose more than the other paupers, who, as well as the pursuer herself, it must be presumed, are still supported as formerly; and the same uniform course ought to be followed, until a declaratory action is brought and decided upon. This was the principle of the decision of the Court, after a consultation, in the late case of Colville and others against Graham and others, where some doubt might have been entertained as to the application of the general rule; and I well remember a similar decision many years ago, in a question between the magistrates of Perth and some landward heritors, in one of the four parishes into which the city had been divided, where the Court were unanimous; and indeed, unless the same determination were to be given in all similar cases, the whole paupers in the parish, where the dispute arises, might remain without support until a final decision was given.

It is therefore humbly thought, that the bill of advocation, so far as relates to the landward heritors, should be dismissed, or superseded, until the necessary declaratory actions are brought; while in the separate bill of advocation against the magistrates there should be a remit, with instructions to the magistrates in the

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meanwhile to advance to the pursuer, as well as to the other individuals similarly situated, the necessary and ordinary supplies.

According to this view, there would be no occasion at the present time to make any further observations; but as the interlocutor in the other division of the Court calls for an opinion upon the general questions discussed in the pleadings, I shall proceed to state, as briefly as I can, what has occurred to me on the subject. My opinion is the same which has been already given in this case by the kirk session of the parish.

The general scope and object of the law of Scotland in reference to the support of the poor, depending upon the particular enactments referred to by the parties, joined to various proclamations of the secret or privy council of Scotland as authorized or ratified in parliament, appear to be, 1st, To distinguish between those who by infirmity or disease are unable to work for their livelihood, and those who are not willing to work though able; with regard to the latter strong and coercive measures are to be followed; but these do not fall under the present discussion. 2d, With regard to the former class or description of persons, to impose the burden of supporting them (but, as it appears, most justly and expediently, only so far as necessary to prevent the individuals from perishing for want of food or other necessaries,) on the different parishes where the paupers were born, or where they had resided during a certain number of years preceding poverty; and 3d, To make a distinction in the mode of raising the necessary supplies between parishes consisting entirely either of a landward district or of a royal burgh. Of other burghs,

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whether of regality or barony, no notice is taken, because in this, as well as in other respects, (1 Ersk. 4, 30, 15th November 1759, Park,) these establishments were not in general considered as separated from the other parts of the regality or barony. In the case of Greenock, 31st May 1822, not reported, the point was held to be fixed.—Act 1597, c. 279; proclamation, 29th August 1693.

In royal burghs the care of the poor was left to the magistrates, the sums necessary being to be raised along with the stent or assessment at the time imposed for the other exigencies of the community, or, in other words, according to the estimation of their substance; the whole inhabitants being thus made liable where they had the means of paying.

In landward parishes, again, the necessary powers were given to the kirk session of the parish joined with the heritors, the requisite sums being in the first instance leviable from the proprietors and householders, they having a claim of relief for one half of the assessment against their tenants, so far as the property was so occupied. Nothing is said, as in royal burghs, with regard to the rule or standard by which each party was to be assessed; and by a clause, to which reference has been made in the proclamation, 9th August 1693, the ministers and elders in landward parishes may determine all questions in their respective parishes ‘in relation to the ordering and disposal of the poor, in so far as not determined by the former laws and acts of the privy council;’ and so, as was decided in the case of St. Cuthbert's, they may fix either upon the real or valued rent of the

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lands, or according to any other rule thought more consistent with the state of the parish.

Upon perusing the whole of these regulations, the distinction between royal burghs and landward parishes appears to have been attended to with the utmost care; the produce of lands and houses in the one case being held as the only source of assessment, while in royal burghs, as enjoying peculiar privileges with regard to trade and commerce, and where opulent individuals are to be found, though not proprietors or leaseholders, the general wealth of the inhabitants is pointed out as forming one important means of contribution, and, in the case of many of the persons liable, the only proper standard of it.

But throughout the whole regulations no provision can be discovered for the case of a parish composed partly of the territory of a royal burgh and partly of a landward district; and holding this as casus improvisus, it might be a fit subject of a new enactment; on the other hand, if it be reached by the statutes and regulations already made, when properly explained, the question would truly be, in what manner, consistent with justice, and for the benefit of all parties, an assessment could be made, due regard being had to the statutory regulations in those cases where the intention of the legislature has been distinctly expressed.

That the rule has not been fixed by determinations of the courts of law is admitted on all sides, and that it cannot be ascertained by universal or even general usage is equally clear. The reports from the town clerks prove, that in all the parishes which are partly

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burgal and partly landward, consisting of seventy-six, no assessment has yet been raised, unless in fourteen cases; and in these the practice is not uniform almost in any respect. In some the assessment is levied separately in the two divisions of the parish, as in the case of Lanark; in others, although the assessment is imposed on the whole parish without distinction, it is impossible to draw any certain inference from it without more particular information as to the state of the several parishes in respect of population, trade, and other circumstances. In some cases, for various causes, it may have been of little or no importance what should be the rule of assessment; and where the proprietors in the landward district are liberal and wealthy, and in many cases from an anxious desire of avoiding a poor's rate as it is called, which is the scourge and disgrace of a neighbouring country, the contribution, as it may be called, falling on each individual, bears little or no proportion to that pointed out by the law; and although the assessment, being made for twelve months, and sometimes for a shorter term, it may be varied according to the state of the parish, this ought in no case to be done in such a way as to affect the immediate relief of the poor, who are entitled to their maintenance according to the usage, until a contrary rule is sanctioned by general agreement, or in the courts of law; and I do not see any difficulty in making such an arrangement, wherever the parties think that some alteration ought to be made; and indeed in several instances the course I have now to mention appears to have been followed.

There being but one kirk session in every parish, the members of it may require the attendance of the

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heritors in the landward district, and of the magistrates of the royal burgh, as representing the community, while no person who has a peculiar or adverse interest should be excluded from attending. The number of the poor, and what is necessary for their support, will be the first objects of attention, and for these purposes a joint and general meeting in all cases seems indispensable; and thus the comparative population in the two districts, and what is required for an adequate support of the poor, will be properly ascertained from the state of the parish. There may be little difference in the result, whether the assessment is to be general or separate, or by mutual concessions; some equitable medium may be adopted; but to fix one and the same standard, in a case like this, throughout the parish, in the manner here proposed, and still more, without any proof, to limit the proportion to be paid either in the landward or the burgh to one third, or any other proportion, more or less, seems quite incorrect and contrary to law. On the one hand, the assessment in part would thus be imposed on the heritors and householders of the landward district, without affording to them their relief against their tenants, if they have any; è contra, the proprietor or householder within burgh would have relief against his tenants, for which there is no authority in any of the enactments; and in fine, if the rule hitherto adopted by the magistrates of Lanark were to be followed, the inhabitants, as distinguished from proprietors and householders, would be altogether exempted, although in many cases much more able to bear the burden than any of their fellow citizens.

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As to the application of the sums contributed at the church doors and otherwise, the presumption is that they were intended for the general relief of the poor in the parish; and therefore, if it had not been otherwise particularly ordered, as long as they exist they would be distributed according to the wants of the poor in both divisions of the parish; but if there be a continued and permanent poor's rate established, by which the necessary supplies are provided for, few or no contributions can be expected, and those who are truly charitable will, as is often done, and with great effect, bestow their aid upon persons particularly known to them by their merits or misfortunes.

Something has been said of the hardship which would be imposed upon the inhabitants of the burgh, according to the rule of assessment which has been suggested, those in necessitous circumstances being to be found in greater numbers, and to be supported at a greater expence in the burgh than in the landward district. But, 1. No pauper is entitled to aid within the burgh if he has not resided in it for three years preceding poverty. 2. The same principle would have been applied to a parish wholly burgal, but surrounded as it must be by rural parishes, in many cases, of greater population and wealth; and 3. It has been shown, that an amalgamation of the two districts, such as has been suggested, could not in any case be listened to, without an open and avowed breach of the law as it now stands.”

In the present case his Lordship gave this opinion:—

“We have here a summons containing declaratory conclusions, and have an opportunity, without disturbing

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the interim possession, to decide in what manner in the parish of Dunbar the assessment for the support of the poor is to be imposed and levied.

The state of the parish has not been very clearly given. That there is a considerable part of it without the territory of the burgh is not disputed; and, for time past all memory, those residing within the landward district have been considered as having a separate and independent interest with regard to such assessments. The total population at one time exceeded 5,000; at this time it is rather less, but at all times the greater number have resided within the burgh, although it is said that many have gone thither after having become poor in the landward district. The annual assessment varies from 400 l. to 500 l.; and besides there is a sum of 15,000 merks Scots, which had been bequeathed for the aid of the poor within burgh; also the produce of the mortcloths used in the parish, and the contributions at the church doors, which are divided equally between the poor in the burgh and those in the landward district. It is said that paupers residing in the burgh are permitted to beg within the territory; but that appears to be an improper practice, and ought to be discontinued.

It is not disputed that, in 1724, an agreement was made between the magistrates of the burgh and the proprietors in the rural part of the parish, by which one sixth only of the necessary assessment was to be defrayed by the former, and the remaining five sixth parts by the latter. The writing to which both parties refer bears, that the assessment was to be for one year only, and that it should not be binding for more

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than the year, nor held as a precedent in any manner of way for the future; but so far as can be discovered, the same rate of assessment has been followed till lately.

In this manner two points have been raised:—

“1. Whether the rule or standard of assessment thus consented to was agreeable to law, and such as might be introduced at this time in similar circumstances? and—2dly. Whether, in consequence of the practice and usage as above described, the rule has become absolute and unalterable?

And, 1st. If it were to be held that the case of parishes partly burgal and partly landward had not been provided for by any of the Scots enactments or proclamations by the privy council in Scotland, it does not readily occur how such an agreement could be obligatory or effectual, unless perhaps upon those who had voluntarily acceded to it. The case would be the same as if an agreement of the same import had been entered into between two separate parishes; nor would this be the subject of much regret, the magistrates of royal burghs having all the necessary powers with regard to the poor within the territory, while the kirk session of the parish, together with the proprietors in the landward district, may, unless within the territory of the burgh, exercise the same authority. In this way too the complaint which has been made of persons becoming poor in the landward district and then retiring to the burgh for support would be removed; but indeed, holding the competency of one assessment for the two districts, although separately levied and distributed, there seems to be no doubt that the burden of supporting those individuals,

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who, after having acquired a settlement in the landward district, have become poor, and choose to remove to the burgh, would remain as before, and without regard to their residing in the burgh or elsewhere.

But 2dly. And supposing that, by a large and liberal construction of the different regulations with regard to the poor, the magistrates of the burgh and the kirk session and heritors of the landward district could together and at the same time ascertain the number of the poor in the parish requiring aid, and levy the necessary assessments in the two districts, in the manner suggested, it humbly appears that the poor in the two districts are not to be supported from the same funds, but separately, and from the funds proper to each. While the assessment in the landward district may be raised either according to the real or the valued rent, or by any other rule for the general advantage, what is required for the poor within burgh is to be levied from the inhabitants generally, so far as they are able to pay, and in proportion to their ability; and in no possible case can an assessment be enforced, which has no reference to any of these standards, but rests upon the caprice and pleasure of a joint meeting of the kirk session, the heritors of the landward district, together with the magistrates of the burgh. It is possible that a payment of one sixth part of the assessment out of one of the divisions, and of the remaining five sixths out of the other division, might be the same which would be exigible if the legal rules of assessment were adhered to in due form; but to adopt such a proportion, or any other, without reference to any of the legal standards, and still more,

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as in the present case, in direct and professed opposition to them, appears, with great deference, altogether inadmissible.

Here our attention is to be called, not so much to the mode or form in which the assessment is to be carried on, as to the rate of assessment for which each individual or the individuals of a certain portion of the parish are to be made liable. According to the pursuers' statement, the poor in the burgh are to those in the landward district as eighty to forty or thereabouts; and on all hands it is agreed, that the poor in the burgh have always exceeded those in the country part of the parish. In these circumstances, unless in consequence of an express consent given to a particular assessment, it seems impossible to discover in what manner, in such a case as this, instead of paying less than the inhabitants of the burgh, as they ought to do, those in the landward district should be rated for five sixths of the whole assessment; and yet to this result the plea on the part of the defenders does necessarily come.

Still, however, the question remains, how far, in opposition to the practice or usage subsequent to 1724, the pursuers can be permitted at this time to propose a different assessment? And on this point I can see no doubt or difficulty.

In such a case, the defenders cannot raise a plea of prescriptive right; it is not in the power of an individual, or of a corporation, to raise such a plea in opposition to the public law, unless where the practice is such as to do away the law itself. It has been shown that in about seventy parishes, consisting of a

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royal burgh with a landward district, only fourteen have been subjected to an assessment for the poor; while with regard to some of these a distinct assessment has been imposed in the two divisions of the parish; and from the nature of the assessment, as authorized by law, no certain or invariable rule can be formed.

The assessments for the poor do not form a real burden on the lands in the parish; they do not even, like tithes, affect the rents or produce of the lands for the assessment that is then exigible. The obligation imposed upon the individuals in the parish is altogether of a personal nature, and depending upon his condition and circumstances at the time. In addition to all this, the assessment can only be raised for one year at a time, or for a shorter period; and although, by acquiescence merely, and without any formal renewal, the same mode of assessment may be followed for a very long time, this cannot prevent the parties interested from making any alteration agreeable to the public law, and just in itself. This was in terminis decided in the case of the West Church, and cannot well be disputed.

I lay no stress on the declaration inserted in the agreement in 1724; it was quite unnecessary, although it proves beyond all doubt what the opinion of the parties was at the time, and it must be held as forming a part of every after assessment.

Upon the whole, I am humbly of opinion, that the first conclusion in the present action is well founded; and that the pursuers, as heritors of the landward district of the parish, with their tenants, are not liable

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for the support of the poor of the burgh, but for that only of the poor having acquired a settlement within the landward district.

There is a separate or alternative conclusion in the summons, that if there were to be no separate assessment in the two divisions of the parish, the heritors, provost, minister, and elders, should be authorized to make an assessment for the whole aggregate poor, to be laid upon the whole inhabitants of the parish equally, whether in burgh or landward, and according to the estimation of their substance, without exception of persons; but it does not occur to me that such a determination can be required, and it would not be agreeable to law”

In the Lanark cause, Lords Mackenzie and Medwyn delivered this opinion:—

“While the laws enacted in this country for the provision of the poor distinguish the two cases of the poor within burgh and the poor in country, or, as they are termed, landward parishes, there seems to be no enactment applicable to the case of a parish consisting of a royal burgh with a landward district, not burgage, included within it. Throughout the whole series of enactments on this subject, the poor, as they belong to a royal burgh, or a parish to landward, are contradistinguished, and both the persons who are to superintend the poor and administer the fund for their support, as well as the mode and rule of assessment for raising the fund, are different in relation to the two sets of poor. The foundation of the whole system is the act 1579, c. 74. This act directs the provosts and bailies within burghs, and a judge constitute by the king's commission in each parish to landward, to make a catalogue

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of the names of the poor people, and then, by the good discretion of the saids provosts, bailies, and judges in the parishes to landward, ‘to tax and stent the hail inhabitants within the parish, according to the estimation of their substance, without exception of persons;’ they are also to appoint overseers and collectors in every burgh, town, and parish, which shall receive the weekly portion, and ‘deliver as meikle thereof to the saids puir people, and in sik manner as the saids provosts, and bailies, and judges in the parochin to landwart respectivè sall ordine and command.’

Thus a distinct line of separation is drawn between royal burghs and parishes to landward, in regard to the administration of their respective poor, which is kept up throughout the whole series of statutes, whether as to the poor or vagabonds; and it appears never to be contemplated, that the magistrates within burgh, or the managers to landward, are to be conjoined in the management of the poor, or in assessing or distributing the funds.

The only alterations made in this original plan of our poor laws are, that by 1597, c. 272, the care of the poor is transferred to each kirk session, ‘in place of several commissions in landward to be granted by the king,’ with whom, by the act 1672, c. 18, the heritors of the parish are conjoined; and that by the proclamation 11th August 1692 the heritors and kirk session of landward parishes are to assess themselves for support of the poor, and to lay the burden, the one half upon the heritors, and the other half upon the householders of the parish, adopting very nearly the rule for such parishes imposed by 1663, c. 16,

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for the expence of employing vagabonds and idle persons.

As this proclamation did not apply to royal burghs, nor to vacant parishes, where of course there was no kirk session, this omission was supplied by proclamation 29th August 1693, which requires ‘the magistrates of our burghs royal to meet and stent themselves,’ &c.; ‘and the heritors of the several vacant parishes to meet and stent themselves for the maintenance of their respective poor.’

If the rule of assessment had continued as prescribed by the act 1579, so that each person paid according to the estimation of his substance, one difficulty would have been removed, when it is proposed, in a burgh with a landward district forming one parish, to make one roll of poor and one assessment; and there would remain only the objection to the different jurisdictions or managers, under whom the poor, according as they are within burgh or not, are respectively placed. But the assessment in a country parish is levied by the appointment of the heritors and kirk session, half payable by heritors, conform to the old extent or valuation, ‘or otherwise, as the major part of the heritors shall agree,’ the other half to be paid by the tenants and possessors according to their means and substance; while the magistrates within burgh stent the inhabitants in terms of the proclamation 29th August 1693, ‘conform to the order and custom used and wonted in laying on stents, annuities, and other public burdens in the respective burghs, as may be most effectual to reach all the inhabitants.’ These proclamations are ratified by act 1695, c. 43.

Thus the magistrates of burghs are to provide for

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the poor under their jurisdiction, and to assess the inhabitants for their support, according to certain rules from which there is no warrant to deviate; while the heritors and kirk session of a parish to landward are to provide for the poor in such parishes by an assessment regulated on totally different principles. We do not find any warrant for authorizing one roll of poor in a parish, partly burgal and partly landward, so that either the magistrates shall be under the necessity of providing for the poor beyond the burgh, or the heritors and kirk session for those within burgh; neither do we see that it is ever contemplated that the magistrates, heritors, and kirk session are to form one body, and provide for the general mass of poor, burgal and landward. Further, the magistrates are authorized to stent in the burgh only, according to the estimation of the substance,—a mode by which the heritors to landward are not to be assessed; and on the other hand, the heritors and kirk session cannot assess the inhabitants of a burgh over whom they have no jurisdiction, and those whom they assess they are to assess by a rule quite different from the burgal mode.

If it shall be said, that the proclamation 3d March 1698 gives sufficient authority to the Court to regulate assessments for the poor in a burgh with a landward district, so as to oblige the magistrates, heritors, and kirk session to act as one body, and make up a single roll of poor to be supported by assessment, we are unable to come to that conclusion; for it seems impossible to suppose that it could be the intention of the privy council to create such a legislative power affecting the inhabitants of royal burghs by instructions

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addressed only to ‘the ministers and elders of each parish, with advice of the heritors, or so many of them as shall meet and concur with them,’ and in which the magistrates are not so much as mentioned, by merely authorizing them ‘to decide and determine all questions that may arise in the respective parishes in relation to the ordering or disposing of the poor, in so far as it is not determined by the laws and acts of parliament, and the former acts of our privy council;’ obviously meaning only the ordinary questions in the management of that class of poor which is already under their charge, so as not however even there to run counter to what is established law on the subject.

Further, supposing there was to be only one roll of poor, the difficulty would still remain; what portion of the expence is to be raised by the burgh, and what by the landward heritors? Each by law are entitled to be assessed according to a particular rule, producing equality of burden among themselves, when each class raises a specific sum; but, if extricable at all, great inequality would arise when applied to raise a single fund. Neither class is bound to give way to the other, so as to adopt the same rate of payment over all; and as to the inhabitants within burgh, and the inhabitants in the country, they can be legally assessed according to a certain specified rule, and no other.

It seems to us that the only mode in consistence with the rules established for assessments by burghs and landward parishes is to hold that the poor within burgh are subject to the jurisdiction of the

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magistrates, and must be supported by the assessment leviable by them from the burgal inhabitants, stented according to use and wont; and that the poor to landward are to be maintained from the assessment upon the heritors and inhabitants under the jurisdiction of the heritors and kirk session, assessed according to the rule in country parishes. This is the rule which has hitherto been adopted in Lanark; and we see no necessity for change, and no authority which the Court has to compel any alteration upon it. It is true that in several parishes, nay in most, similarly situated as Lanark is, the difficulty has been solved by a special agreement, by which there is but one roll of poor, for whom the burgh and landward portion of the parish contribute in certain fixed proportions, differing according to the circumstances of each case. But this is entirely a matter of special agreement; and we think it is beyond the power of the Court to compel those who are unwilling to adopt any such rule. Further, we think that the case of the West Kirk parish, Scott against Fraser, 19th January 1773, is inapplicable; because there was no royal burgh there entitled to a peculiar mode of assessment, and a jurisdiction distinct from the heritors and kirk session. Burghs of barony have never been recognised as having any such privilege in this matter of the poor, and they are treated as landward parishes, both as to the jurisdiction of the heritors and kirk session, and the mode of assessment, which, as to the heritors' quota at least, may be by the old extent, the valuation in the cess-books, ‘or otherwise as the major part of the heritors shall agree;’ and accordingly

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the Court confirmed the resolutions of the majority, that the assessment there should be according to the real rent.

As to the collections at the church door, if the magistrates, and heritors, and kirk session respectively do not agree about the proportion in which they are to be divided, as it is impossible to know in what proportion the attenders at church from the burgh or landward portion of the parish respectively contribute to the funds, we are of opinion that the only rule of division which can be recommended is, that the quota set apart for the poor should be divided in proportion to the amount levied upon each portion of the parish respectively.”

In the present case their Lordships delivered this opinion:—

“We remain of the opinion we gave in the case of Lanark, that there is no warrant in our statutory system of poor laws for imposing upon the landward part of a parish, in which there is a royal burgh, the burden of contributing to the maintenance of the poor who have a legal claim to parochial relief as residenters within burgh. Our reasons for this opinion we have given in that case, to which we beg to refer.

The present is so far different, that while, in the case of Lanark, the management of the poor, as they were locally situated within the burgh or the landward district of the parish, had always been separately provided for,—those within burgh by the magistrates, as representing the community, and those resident in the rest of the parish by the landward heritors,—here there seems to have been an agreement entered into between the magistrates of Dunbar and the landward heritors

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in 1724, by which a joint arrangement was agreed to ‘for the year ensuing allenarly,’ with a special clause, that ‘this should not be drawn into a precedent in any time coming.’ The agreement was that the burgh was to pay one sixth, and the landward heritors five sixths, of the assessment for the poor.

There is no evidence as to future years, till the year 1774, since which time this same proportion has been paid. We do not think that this usage, guarded more especially as it was at the commencement by the express stipulation that it should not form a precedent any manner of way for the future, can bind the landward heritors, so as to compel them to continue it longer than they think it expedient. We are of opinion, that the agreement was entirely voluntary at the time; that, if not contrary to the law, it was at least not supported by the law; and that the heritors who entered into it, and those in succession who conformed to it, have not bound the present heritors to the continuance of a practice commenced under the proviso here so anxiously introduced.

We are therefore of opinion, that decree should be given in favour of the pursuers, in terms of the first alternative conclusion of the summons.”

On these opinions being communicated to their Lordships of the Second Division, they delivered their opinions orally, of which the following notes were laid before the House of Lords as embracing the substance of them:—