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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Peter M'Craw, Collector of Poor's Rates in the Parish of South Leith - Stephen - Milne Peter Hill, Collector of Poor's Rates for the City of Edinburgh - Dr. Lushingto - Shaw v. Charles Cuningham, W. S., Factor for the Proprietors of the Waterloo Hotel, Edinburgh - Attorney General (Campbell - Forbes [1837] UKHL 2_SM_773 (14 July 1837)
URL: http://www.bailii.org/uk/cases/UKHL/1837/2_SM_773.html
Cite as: [1837] UKHL 2_SM_773
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SCOTTISH_HoL_JURY_COURT
Page: 773↓
(1837) 2 S&M 773
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1837.
2 d Division.
No. 22.
v.
[
Subject_Poor. —
Held (reversing the judgment of the Court of Session) that the city of Edinburgh is entitled to levy and apply to the use of the poor of the city money assessed for the poor on the Waterloo Hotel, although the ground on which it is built is situated within the parish of South Leith, the same having been annexed by statute to and incorporated in the royalty, but not expressly disjoined from South Leith; and that the parish of South Leith is not also entitled to poor's rates from the proprietors of the hotel.
Subject_Process. —
Circumstances in which a process of multiplepoinding was held competent, although it was alleged that there was not double distress.
Subject_Appeal. —
Two counsel only are entitled to be heard on the same point although there be separate appellants under separate appeals. (Note, p. 797.)
The question involved in this case was, whether the proprietors of the Waterloo Hotel, situated on the Regent's Bridge of Edinburgh, were liable to pay poor rates, both to the collector for that city and to the
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The Waterloo Hotel was built in the year 1821 by a number of persons who associated for that purpose, and was let to a tenant, Mr. Gibb, and managed by the respondent, Mr. Cuningham, as their factor. From that year, 1821, till the present dispute arose in 1828, the collector for Edinburgh had levied the rates for the poor from the tenant as occupant, on a rental of 6,500 l. Scots. In that city the practice is to levy from the occupant, whether he be the tenant or proprietor; and the sum chargeable for the year 1827-8 was four per cent., or 21 l. 13 s. 4 d.. During the years from 1821, till 1827, no poor's rates had been levied by the collector for Leith from the hotel. The custom of assessing in that parish is, to put one half of the rate on the proprietor, and the other half on the tenant. For the year 1827-8, it was resolved by the proper authorities of Leith, to levy a rate of nine-pence per pound; and the sum charged as against the hotel was on a rental of 1,040 l. sterling, or 39 l. For one half of this sum (or 19 l. 10 s.) M'Craw, as collector for Leith, raised an action before the sheriff of Mid Lothian against the proprietors. No action was raised against the tenant.
In defence it was pleaded, that the statute 54 Geo. 3. had the effect to incorporate the ground, and consequently the hotel, on which it was built, within the city of Edinburgh; that the poor's rate was payable, and had been, since 1821, paid to Hill as the collector for that city; and
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In answer to this, it was maintained, that the statute did not disjoin the lands from the parish; and that, on the contrary, the statute was qualified by the provisions of the 7th Geo. 3., one of which was, a reservation to the parish of the poor's rates.
No action had been raised by the collector for Edinburgh; but the respondent, as factor for the proprietors of the hotel, assuming that a claim would be made by the collector for Edinburgh, brought a summons of multiple-poinding, to which he called the two collectors as the competing parties. In the summons he set forth, that he “had been in the practice for above six years, of paying the assessment of the poor rates applicable to the said hotel to Peter Hill, Esq., collector of said poor rates, and the property has been assessed from 1827, to 1828, in the sum of 21 l. 13 s. 4 d., and which is charged against the complainer, and payment demanded by the said Peter Hill as collector aforesaid; that Peter M'Craw, as collector of the assessment for support of the poor in the parish of South Leith, has raised an action against the complainer as factor, for the said proprietors of Waterloo Hotel, concluding for payment of 19 l. 10 s. sterling, being the alleged assessment laid on the said proprietors for support of the poor, at fourpence halfpenny sterling per pound, upon 1,040 l. sterling of rent for the said hotel, from Whitsunday 1827, to Whitsunday 1828, which assessment the complainer is not in safety to pay to the said Peter M'Craw, in respect of his having been in the practice of paying these assessments, to the said Peter Hill,
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M'Craw, the collector for Leith, lodged a claim without making any objection to the competency of the action; but Hill, as collector for Edinburgh, gave in defences, objecting, that it was incompetent, because, the claims were not for the same fund, but were quite distinct in themselves, the one being against the proprietors for 19 l. 10 s., and the other against the tenant for 21 l. 13 s. 10 d.; the former being founded on the ancient statutes of Scotland, and the latter on the 54 Geo. 3. cap. 170. But if the competency were sustained, then he claimed payment of the above sum of 21 l. 13 s. 10 d., in respect that the act of parliament not only conferred the right, but made it imperative on the magistrates of Edinburgh, to levy a rateable proportion of the city poor's money from the “proprietors and occupiers” of the houses built, or to be built, on the ground
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The sheriff conjoined the processes, and thereafter pronounced the following interlocutor:
“The sheriff, in respect the claimant Hill only alleges he has collected poor's money from the property in question for six years, finds him not entitled to a possessory judgment. In respect of the 5th section of the statute 7 Geo. 3. c. 57., finds, that the grounds on which the premises in question have been erected are not disjoined from the parish of South Leith, nor annexed to the royalty of the city of Edinburgh, by the said statute: finds, that by the 8th section of the statute 54 Geo. 3. c. 170., the jail commissioners were empowered to acquire lands, tenements, &c. for the bridge, road, and communication specified in the said statute, and the areas on each side thereof, not exceeding in whole 195 feet in breadth: finds, that in case only a part of any house or other building were comprehended within the said space of 195 feet, the said commissioners were by the 15th section of the said statute 54 Geo. 3. bound and obliged, if required, by the owner or owners of any such house or building, to purchase the whole thereof: finds, that by the 18th section of the said statute 54 Geo. 3. the royalty of the city of Edinburgh was extended over the lands, grounds, and houses acquired under the 8th and 15th sections of the said statute, subject however to all the clauses, provisions, declarations, exemptions, and reservations in the statute 7 Geo. 3. c. 27., and in particular to the provision in the 12th section of the said
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statute 7 Geo. 3. that the several lands annexed to the royalty of the city of Edinburgh shall, besides the cess to be levied by the collector of the town for and in respect of the houses and buildings, remain liable and be subjected to the payment of a rateable proportion of the cess, land tax, and other public duties imposed or to be imposed on the shire of Edinburgh for and in respect of the ground, and also to the provision in the 16th section, that the said lands disjoined from the parishes of St. Cuthbert's and South Leith, and the heritors thereof, shall remain liable and be subjected to the minister's stipend, and other parochial burdens: finds, therefore, that the premises in question, in so far as the grounds, on which they are erected have been acquired under the 8th and 15th sections of the statute 54. Geo. 3. are liable in poor's rates to the claimant M'Craw, in respect of the value of the ground on which the premises are built, and to the claimant Hill, in respect of the value of the premises or houses built on said ground, and that any part of the said premises which may have been acquired by the commissioners, but not in terms of the said 8th and 15th sections, are liable in poor rates to the claimant M'Craw, in so far as respects the value both of the ground and of the premises built on the ground. Before further procedure, grants diligence”
for recovery of certain documents.
On mutual petitions the sheriff depute recalled the interlocutor; and in respect he had a personal interest, having two shares of the Waterloo Hotel, he declined judging in the case, and remitted it to the sheriff substitute. The sheriff substitute pronounced the following interlocutor:—
“The sheriff substitute, having
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considered the conjoined processes, finds, that the act of parliament 54 Geo. 3. c. 170., which extends the royalty over the whole or part of the ground on which the Waterloo Hotel has now been built, does not disjoin that ground from the parish of South Leith, and does not expressly provide that the ground shall not be liable to the poor rates of that parish; and therefore finds, that that ground, with the houses built or to be built upon it, must be liable to those poor rates, in the same manner as any other ground in that parish: finds, that by that act of Parliament it is expressly provided, in section 18, that the magistrates of the city of Edinburgh may levy, from the proprietors and occupiers of all houses built, or to be built, on the ground over which the royalty is so extended, the same proportion of cess, annuity, poor's money, and other duties, as within the extended royalty; and finds that that right to poor money, is not affected by the reservation contained in the concluding part of the same section; and therefore finds, that houses built, or to be built, on that ground, are liable to poor rates as fully as any other houses within the extended royalty; therefore, ordains the defender Cuningham to pay to the pursuer M'Craw the sum of 19 l. 10 s., concluded for in his action, with the lawful interest thereon, from Martinmas 1827, till payment: dismisses the process of multiplepoinding as inapplicable to this case, where both claimants are entitled to full payment: reserving to the claimant Hill to institute such action as he may be advised against the pursuer Cuningham for payment, and reserving to him his defences, with regard to the extent of ground included within the royalty, the Page: 783↓
amount of the sum which may be demanded from him, or otherwise, as he may be advised: finds the pursuer Cuningham, liable in the expenses incurred by the other parties in the conjoined processes,” &c.
The respondent then brought the case before the Court of Session by advocation, when Lord Medwyn affirmed the judgment of the sheriff, by remitting simpliciter, and found expenses due to the appellants.
The respondent having reclaimed to the Second Division, their Lordships appointed the question to be argued in cases, and directed them to be laid before all the other Judges for their opinions.
The Lord President, Lord Justice Clerk, and Lord Jeffrey declined to judge, having an interest as proprietors in the Waterloo Buildings.
Lords Balgray, Gillies, Mackenzie, Corehouse, and Moncreiff concurred in the following opinion:—
“By the ordinary rules of the law of Scotland lands or tenements may be in one parish quoad sacra, and in another parish quoad civilia; but they cannot at one and the same time be in two parishes both quoad sacra and quoad civilia, or in two parishes quoad sacra, or in two parishes quoad civilia. Every parish is bound to maintain its own poor, and the poor of lands or tenements united to it quoad civilia; but it is not bound to maintain the poor of another parish or of any part of another parish not united to it quoad civilia. An act of parliament may expressly direct that a parish or any part of a parish shall be assessed towards the maintenance of the poor of two parishes; but it is not to be presumed that in dubio this is the intention of the legislature, first, because it is contrary
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to the ordinary rules of law; secondly, because, with only one exception, it has not been hitherto done; and, thirdly, because it would neither be necessary nor equitable nor expedient. With regard to the maintenance of the poor, parishes are in three situations; they are either landward or burghal, or partly landward and partly burghal. In landward parishes the assessment is made by the heritors and elders; in burghal parishes by the magistrates and council, and in parishes partly landward and partly burghal by the heritors and elders in the one part, and the magistrates and council in the other, or in a joint meeting of both, or otherwise as usage may have sanctioned.
Previous to the 54 Geo. 3. c. 170. the parish of South Leith was a landward parish, that is, no part of it lay within a royal burgh, and the assessment for the poor was imposed accordingly. By that statute part of it was brought within the royalty of the city of Edinburgh, and it thus became partly landward and partly burghal; for that part over which the royalty was extended was not disjoined from the parish of South Leith to be united to the parish of St. Giles, or any other parish within the royalty.
By the 18th section of the statute, the magistrates and council of Edinburgh were empowered to assess the proprietors and occupiers of houses built or to be built on the lands to which the royalty was then extended in an equal proportion of cess, annuity, poor's money, and other duties with that assessed by them on the proprietors and occupiers of houses in the remainder of the extended royalty. But the statute does not direct in what manner the sum so assessed
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shall be applied. Now it appears to us that the magistrates and council of Edinburgh are bound, in the first place, to pay to the parish of South Leith, or apply to the maintenance of the poor of that parish, a part of this assessment, corresponding to the proportion between what is now the burghal and what remains the landward part of the parish; and that the burghal part so assessed by the magistrates and council cannot be assessed a second time by the heritors and kirk session, because it has been already burdened with its proper share of the expense necessary for maintaining the poor of the whole parish. It rather appears to us that the magistrates and council, having acquired right vi statuti to assess at the same rate as they do in the rest of the extended royalty, may apply the remainder, if any, after satisfying the primary claim of the parish of South Leith in maintaining the poor of Edinburgh, or for any purpose to which the poor's money of the rest of the extended royalty may lawfully be applied. On this point however it is not necessary at present to inquire, because the proprietors of the Waterloo Hotel, the advocators in this process, do not object to a proportional assessment equal to that levied in the rest of the extended royalty. The most plausible argument in our opinion against this view of the case is, that when the royalty was extended by the 7 Geo. 3. c. 27. over part of the parish of St. Cuthbert's, there was a provision in tho statute imposing a double assessment on it, by which it pays poor's rates both in the parish of St. Giles and in the parish of St. Cuthbert's. But there is this material difference between the cases, namely, that
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by the 7 Geo. 3. the lands to which it refers were expressly disjoined from the parish of St. Cuthbert's and united to the parish of St. Giles, by which they became primarily and indeed expressly liable to be assessed in the latter parish for the poor of that parish. But further, by a positive and anxious clause in the statute it is declared, that notwithstanding that liability they shall remain liable for parochial burdens in the parish of St. Cuthbert's. In that case, therefore, no room is left to argue from presumption or inference, from the analogy of law, or from the hardship and injustice of a double assessment, for the will of the legislature is expressed in terms which do not admit of dispute. But in this case there is no disjunction of the lands from the parish of South Leith, no annexation, either quoad sacra or civilia, to the parish of St. Giles or any other parish, no direction to the magistrates and council how they are to apply the sum which they are empowered to assess, and, above all, no provision that the subjects shall be twice assessed; therefore the ordinary rule of law is let in, by which the burghal part of the parish of South Leith must pay its share of the poor's rates of that parish before any part of an assessment on it for the poor can be applied to any other purpose. It may be true that the framers of the act of the 54 Geo. 3. might have had a different object in view, and might have wished to impose as heavy a burden on the subjects in question as was imposed by the 7 Geo. 3. on another part of the extended royalty. If this were their object, we cannot regret that they failed to carry it into effect. On these grounds we are of opinion that the interlocutor of the sheriff should be altered, and that the
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poor's rates levied by the magistrates of Edinburgh from the tenements in question should be applied in the manner we have pointed out, by which a double assessment will be avoided.”
“By the act of 54 Geo. 3. cap. 170. the grounds in question were brought within the royalty of the city of Edinburgh. They were not however disjoined from the parish of South Leith, so that, although they still remained a part, they became a burghal part of that parish. It is expressly provided by the statute, that the magistrates of Edinburgh should assess and levy from the proprietors and occupiers of the houses built on these grounds poor's money, in the same proportion as that assessed and levied from other proprietors and occupiers within the extended royalty. In virtue of this clause there can be no question that this now burghal part of the parish of South Leith is subjected in payment to the magistrates of Edinburgh, of the rales generally leviable within the extended royalty of Edinburgh, and without reference to the necessities of the poor within the parish of South Leith. But the question raised in these actions is, whether the advocators, the proprietors or occupiers of a burghal part of South Leith, shall, in addition to these burghal rates of assessment, also be assessed to the full amount of the rates leviable in the remaining or what may be termed the landward part of the parish. My opinion is, that they are not so liable. It would require some clear enactment to subject them to a double burden so very unreasonable and unusual; and it does not appear to me that the statutes contain
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any provision which either expressly or even by a fair implication warrants this conclusion. If it could be held, that in consequence of these grounds still forming part of the parish of South Leith the heritors and kirk session of that parish could claim an interest in the funds levied from them for the general support of the poor of the parish, I should rather be disposed to concur in the opinion expressed by some of the consulted judges, that this claim must be made good, not in the form of a double or additional assessment upon the advocators, but in that of a demand against the magistrates for a proportion of the assessment levied by them under the statute. But, in the first place, I doubt whether the claim in this form is admissible in the present procedure; and, secondly, it does not appear to me that the parish of South Leith can, consistently with the principle laid down as applicable to parishes partly landward and partly burghal, have any claim for or interest in the assessment for the support of the poor leviable from grounds now forming a burghal part of the parish. The very question raised and determined in the late cases of the landward heritors of Lanark and Dunbar 1 against the magistrates of those burghs was, whether in parishes partly landward and partly burghal the administration of the poor laws should include the whole parish, or should be split into two, the one applicable to the burghal, and the other to the landward part of the parish. The latter view was adopted by the majority of the Court, after full consultation; and accordingly decree
_________________ Footnote _________________
1 Landward Heritors of Dunbar v. Magistrates & Council of Dunbar, 11 S. & D. p. 879; since Reversed in 1 Shaw & Maclean's Ap. C. p. 134.
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“The question here depends entirely upon the construction to be put upon the statute 54 Geo. 3. c. 170., which, so far as regards the grounds in question, has superseded the common law relative to the support of the poor.
This act empowered commissioners, to acquire certain portions of ground between the east end of Prince's Street and the Calton Hill; and when so acquired “the royalty of the city of Edinburgh shall be extended over the same,” and the lord provost, magistrates and council “shall and they are hereby authorized and empowered to stent or assess and levy from the proprietors, &c. an equal proportion of the cess, annuity, poor's money, and other duties with that stented or assessed in the extended royalty; provided that the extension, &c. is hereby made under all the clauses, &c. in favour of his Majesty or others,” in 7 Geo. 3.
Now, when this act was passed, these lands be
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longed to the parish of South Leith; and how does it affect them as to this matter? They are not expressly disjoined from the parish of South Leith, neither are they annexed to any parish within the city: all that is done is, that the royalty and jurisdiction of the magistrates of Edinburgh is extended over them. Every portion of land or tenement of houses in this country, must be situated within some parish or other; and the inhabitants have certain rights and are subject to certain duties, in respect of this ecclesiastical division of the country. This is quite distinct from the civil jurisdiction to which every such inhabitant is also subject; and it is quite conceivable that there may be a change in the one, without any change in the other. If, for instance, a village, forming part of a landward parish, is constituted a burgh of barony, the civil jurisdiction is changed, while the ecclesiastical will remain as before; or if a burgh of barony is erected into a royal burgh, the powers vested by law in the magistrates of a royal burgh, will modify the civil rights of the burghers, while the ecclesiastical jurisdiction over them continues as before. Now I cannot understand how the extension of the royalty of Edinburgh over the grounds in question should withdraw them from the jurisdiction of the minister and kirk session of South Leith, as to every ecclesiastical matter falling under the cognizance of that court, or from the jurisdiction of the heritors and kirk session as to any thing which is to be regulated by that body. A disjunction from one parish and annexation to another, cannot be made by implication. Such can only take place
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by a decree of the competent court, or the special enactment of Parliament. I have no doubt that the heritors occupying the ground which originally belonged to the parish of South Leith still continue to belong to that parish, and remain liable for parochial burdens there, such as keeping up the church and manse of South Leith; that their banns for marriage must be proclaimed there; that in any case of scandal the occupiers would be convened before the kirk session of that parish; and that a pauper would be entitled to claim relief from the heritors and kirk session, and that he would have no claim against the funds for maintenance of the poor of Edinburgh, because he does not reside within any parish within the city. No doubt there is no express declaration in this act, as there was in the previous one referred to (7 Geo. 3. c. 49.), that these lands were to remain liable to the parochial burdens of the parish of South Leith. But it was necessary to insert this declaration in that previous act, because there the lands were expressly disjoined from the parish to which they formerly belonged, and were annexed to a different parish, and this must have relieved them of their former burden if it had not been otherwise declared. The provisions of that act, as to this matter, are quite unambiguous. It was enacted on a narrative, that those whose property was to be brought within its operation had “either consented, or are bound by their titles to consent;” so that for the advantages of having their grounds brought within the royalty, and streets built upon them, they consented to pay burghal taxes, continuing at the same time
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liable to the burdens formerly payable by them as a landward parish. While it was necessary in that case to be thus explicit in expressing the agreement of parties, there was no such necessity in the present instance, since the grounds remain, as before, a portion of the parish of South Leith, although the royalty of Edinburgh is extended over them; and the proprietors and occupiers must remain subject to the same ecclesiastical jurisdiction as the rest of the parish, and also be liable to legal parochial burdens, as before. The extension of the royalty over the grounds in question brings them within the civil jurisdiction of the magistrates, rendering them subject to the burgh courts, and confers upon the proprietors and occupiers the privileges of trade and other rights competent to the citizens of Edinburgh as a royal burgh. But the act does not stop there; it further gives the magistrates and council express authority and power to levy an equal proportion of cess, annuity, poor's money, and other duties, as in the previously extended royalty. Now, this express power leaves no room for doubt as to the power to levy; and it seems impossible to hold that this can mean, that they are to levy poor's money, but not to employ it in support of the poor of the city, but are to pay it over to the kirk session of South Leith. This would be such an anomaly in the law,—as great, at least, as that of assessing the same lands for the poor of two different parishes,—that it would require an express enactment to that effect. There is however no such enactment. Besides poor's money, the magistrates are empowered to levy annuity from the houses on these lands; but neither is it said that they are to employ
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this in paying the stipends of the ministers of the city. This is left to the operation of law, which appropriates the annuity leviable within the royalty to that special purpose. Now, could it be maintained, that when the magistrates levy this annuity they must pay it over to the minister of South Leith? This certainly would not do, even were this a sum levied out of teinds. Yet it is difficult to see any distinction between this and the levy of poor's money: the same is true as to the cess which the magistrates are authorized to levy; and it must further be remembered, that the cess, annuity, and poor's money are not be levied in the proportions payable by the rest of the parish, which would have been the case if the right to levy had merely been transferred, but is to be in an equal proportion with that levied from the other proprietors and occupiers of houses in the extended royalty. Now, when the right to levy a fund, which is legally appropriated to a special purpose, is given to the legal administrators of that fund, no special directions are necessary as to its appropriation. They are to employ it according to law; and accordingly, as in the case of the annuity, which must go to the ministers of Edinburgh, and the cess to the proportion of that burden upon the city, the poor's money, which the magistrates are empowered to levy must be applied to the discharge of the burden imposed on them of maintaining the parochial poor of the city. There is no warrant for any other application of it. I t may at first sight appear a hardship, that these lands, and the houses since erected on them, should pay assessment for supporting the poor of their own parish, and also the poor of the city to which they
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are annexed, quoad the civil jurisdiction; but in a matter of contract or agreement and special enactment such a consideration must not influence the interpretation of an act of parliament; and considering the advantages to be derived by the original owners of these grounds by the circumstance which occasioned the extension of the royalty over them, they might well consent to this addition to their parochial burdens; and those who acquired the property since cannot object to hold it under all the burdens of an act of parliament which is specially referred to in their titles. It may be noticed, that the 40 Geo. 3. c. 88. extended the royalty of Glasgow over certain lands belonging to the barony parish, from which “they are for ever separated, and hereby annexed to parishes within the said city.” The magistrates have express power to levy “an equal proportion of the cess, trades'-stent, poor's rates, conversion of statute labour, and other taxes,” within the annexed grounds, as they levy within the present royalty; and then they are expressly taken bound to pay the cess to the county, and the statute labour and poor's rates to the barony parish, effeiring to the annexed lands, out of the funds of the city. It would have been easy to have followed this example, and introduced such an enactment in the present case, if such had been the meaning and agreement between the parties.
Upon the whole, I still entertain the opinion I had when this case was before me in the Outer House.”
Thereafter the Court on the 25th of June 1835 pronounced the following interlocutor:—
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“The Lords having resumed consideration of the cases for the parties, with the opinions of the consulted judges, find, in conformity with the majority of these opinions, that the property of the Waterloo Hotel over which the royalty of the city of Edinburgh was extended by the statute 54 Geo. 3. c. 170. is not liable in payment of poor's rates both to the city of Edinburgh and the parish of South Leith; therefore recall the interlocutor of the Lord Ordinary, advocate the conjoined causes, alter the interlocutor of the sheriff and assoilzie the advocator from the conclusions of the action at the instance of Peter M'Craw, collector for South Leith, and decern: find that the magistrates and town council of Edinburgh have acquired, vi statuti, right to assess the proprietors and occupiers of houses built or to be built on the lands to which the royalty was extended, in an equal proportion of poor's money at the same rate as they do in the rest of the extended royalty; but that the foresaid statute does not direct in what manner the sums so assessed by the magistrates and council shall be applied: find as the property has not been disjoined from the parish of South Leith, nor annexed to any parish in the city of Edinburgh, that the said magistrates and council are bound to pay to the parish of South Leith, or apply to the maintenance of the poor thereof, a part of the assessment so to be levied by them corresponding to the amount of the assessment for the poor of the parish of South Leith payable for said property along with the other portion of that parish, and that they may apply the remainder of that assessment, if any, after satisfying the primary claim of the parish
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of South Leith, in maintaining the poor of Edinburgh, or to any purpose to which the poor's money of the rest of the extended royalty may lawfully be applied: therefore rank and prefer the claimant, the collector of the poor's rates for the city of Edinburgh, to the fund in medio, being 21 l. 13 s. 4 d., assessed by the said magistrates on the said Waterloo Hotel, from Whitsunday 1827 to Whitsunday 1828, and rank and prefer the said Peter M'Craw, collector of poor's rates for South Leith, as a rider on the claim of the said collector for the magistrates and council of Edinburgh, to the extent of 19 l. 10 s., as the proportion of the said assessment falling to South Leith, and decern accordingly: find the claimants, Peter M'Craw and Peter Hill conjunctly and severally liable to the advocator in the expenses of process; allow an account to be given in, and remit to the auditor to tax the same, and report: quoad ultra, find no expenses due to either of the claimants; reserving entire all questions as to any claim at the instance of the parish of South Leith upon that part of the property in question over which the royalty is not extended, and to the proprietors their defences as accords.”
The expenses were afterwards taxed at 141 l., and decerned for.
Separate appeals were entered by the collector for Leith and by the collector for Edinburgh.
Appellants.
1—The process of multiplepoinding was incompetent. The magistrates of Edinburgh never
_________________ Footnote _________________
1 Although separate appeals were lodged, both appeals were ordered to be argued at the same time, and a question arose as to the right of counsel to be heard. Each of the appellants appeared by two counsel.
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Collector for Leith (on the merits).—Under the law of Scotland the system of poor laws is strictly parochial. Each parish is bound to afford relief to that description of persons whom the law holds entitled to relief as
_________________ Footnote _________________ Both appellants concurred in maintaining that the multiplepoinding was incompetent, and thus if each had addressed the House on this point four counsel would have been heard. Lord Brougham stated, that the rule of the House was, that only two counsel could be heard on the same point. It was therefore arranged that the two leading counsel for the appellants should address the House on the question of the competency of the multiplepoinding, besides arguing their separate cases, along with their respective juniors, on the merits.
1
Davidson v. Robertson,
4th July 1815, 3 Dow. 218.
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The hotel is situated within the parish of South Leith, upon ground the proprietors and tenants of which have at all times been assessed in poor rates by the heritors and kirk session of South Leith, and who have paid the rates. No statute and no law has disjoined it from that parish, or declared that it shall not be liable for its share of the parish burdens incumbent on South Leith.
The territory transferred by the statute 54 Geo. 3. to the royalty of Edinburgh, may no doubt have acquired certain privileges, or its inhabitants may have been placed under certain liabilities; but such new privileges or new liabilities can have no effect on the present question so long as the territory continues to form a part of the parish of South Leith. The hotel may be liable to a rate both to Edinburgh and Leith, but the liability to the latter could not be discharged except by a disjunction.
But the act of 54 Geo. 3. makes no disjunction from the parish of South Leith; it merely authorizes commissioners to acquire a certain small territory there, over which the royalty of Edinburgh and its taxations were to be extended; and at the same time it is “provided always, that the extension of the royalty over the lands, grounds, and tenements foresaid is hereby made under all the clauses, provisions, declarations, exemptions, and reservations made in favour of his Majesty and others, which are specified and contained in an act passed in the seventh year of the reign of his present Majesty, intituled “An act for extending the royalty of the city of Edinburgh over certain
Page: 800↓
That such was the meaning of the legislature is clear from the circumstance, that when the royalty of Edinburgh was in 1809 extended over a separate portion of land, the territory so added was expressly disjoined from the parish of St. Cuthbert's, of which it formed part, and annexed to the parish of St. Andrew within the city. This being done, it became necessary to provide for the interest of the heritors and kirk session of St. Cuthbert's, who would thus be deprived of one of their resources for the support of the poor. Accordingly, the magistrates of Edinburgh were ordained to pay, from the general funds of the city, 100 l. per annum, and contingently a larger sum, to indemnify the parish of St. Cuthbert's for its loss of territory.
This is direct proof that in framing the statute of 1814, it neither was nor could be intended by the local parties, or the legislature, that the territory then added to the royalty was to be relieved of the parish burdens incumbent on the rest of South Leith. There was no disjunction from that parish; there was no annexation to a parish in Edinburgh; and there was no provision
Page: 801↓
But it has been objected, that it is inconsistent with the general law of Scotland that property locally situated in one parish should be liable in poor rates to two different parishes.
The answer is, that the peculiarity is, not that the hotel is liable for poor rates to South Leith, but that the magistrates of Edinburgh should have any claim against it for poor's rates. That peculiarity is the result of a special statute, which does not liberate that property from the burdens for which it is liable to the parish in which it is situated.
It has been also alleged, that there may be a disjunction of a portion of territory from one parish, and annexation of it to another parish, quoad poor rates, although, quoad ultra, matters remain in statu quo; that this may be held to have occurred with regard to the property purchased under the statute of 1814, over which the royalty of Edinburgh was extended; and that by the unlimited power of Parliament a particular portion of territory may be placed in a new and singular situation, both as to local privileges and local burdens. In such a case it is a question of fact what the legislature has done. The statute, in point of privilege, extended the royalty of Edinburgh over a certain territory, and, in point of burden, imposed the Edinburgh taxations on the proprietors and occupants thereof; but the statute did not disjoin that territory from the parish of South Leith in any respect, either quoad sacra or quoad civilia. All these matters were left on their original
Page: 802↓
It has been said by two of the judges, that in the cases of Lanark and Dunbar it was held by the Court of Session, that the magistrates, must in these burghs, assess the inhabitants in poor rates to support the poor within the burgh, and that the heritors, and kirk session must assess the proprietors and occupants, of the landward part of the parish, for the support of the poor in that landward part exclusively, and that some such rule might be applied to the territory in dispute, whereby it might be considered as separated from the landward parish of South Leith. It is no doubt true that the Court of Session did adopt the notion alluded to, but, the House reversed that judgment.
Collector for Edinburgh (on the merits).
1—Both the words and the meaning of the statute 54. Geo. 3. are quite explicit. It enacts “that the magistrates of Edinburgh shall be and they are hereby authorized and empowered to stent or assess and levy from the proprietors and occupiers of all such houses as are at present on the said property, or shall be hereafter built and erected thereon, an equal proportion of the cess, annuity, poor's money, and other duties with that stented or assessed and levied by the lord provost, &c. from the proprietors and occupiers of houses in the extended royalty, in the same way and
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1 It was admitted at the bar, both by the collector for Leith and by the respondent, that the judgment, in so far as Edinburgh was concerned, was erroneous. Although this was admitted, yet, according to the rule of the House, it was necessary for the counsel on behalf of Edinburgh to show that in point of law it was so.
Page: 803↓
The exclusive right to assess, and to assess with reference to the extent of the demands of the royalty, is assumed in the opinion of five of the consulted judges. Their lordships have said, “It rather appears to us that the magistrates and council, having acquired right vi statuti to assess at the same rate as they do in the rest of the extended royalty, may apply the remainder,” &c. The two other consulted judges said, “In virtue of this clause there can be no question that this now burghal part of the parish of South Leith is subjected in payment to the magistrates of Edinburgh of the rates generally leviable within the extended royalty of Edinburgh, and without reference to the necessities of the poor within the parish of South Leith.” The interlocutor appealed against also virtually admits the same principle.
The right to assess being thus admitted, and the rate to be levied being “poor's money,” and this being to be levied from the proprietors and occupiers of the subject in question “in the same way and manner” as the money for the poor is levied from the proprietors and occupants of subjects within any part of the royalty, and it being admitted that the latter money is for behoof of the poor, it seems to be a most extraordinary conclusion arrived at by the consulted judges, that “the statute does not direct in what manner the sum so assessed should be applied;” and a still more
Page: 804↓
Under this construction the city of Edinburgh, so far from deriving benefit, would be subjected only to trouble and expense; and the property to which the royalty was thereby extended, must be held to have obtained the privileges of the royalty, and the benefit of the large sums expended under the statute and creating its value, without any corresponding burden on it or advantage to the city. A duty would also be imposed on the city of a nature which the administrators of a public community could not take upon them, if desirous to do so. If it shall be held, that while the sole statutory right to assess is vested in the magistrates of Edinburgh, they are bound to account to third parties, possibly for every shilling which they are entitled to levy, they must be held to be liable in strict diligence as factors or agents, in recovering thé sums for which they are bound to account, and the funds of the community thereby subjected in security or realization of claims competent to third parties, and in which these parties alone may have the real or substantial interest. But the construction put on the statute, and the result arrived at, is still more anomalous, when it is recollected that the Court expressly find, that the hotel is not liable to pay poor's rates to both Leith and Edinburgh, and yet they
Page: 805↓
Respondent.—1. The process of multiplepoinding was not only a competent process, but it was the only competent process which in the circumstances of the case could have been brought, and in which the respective interests of the parties could best and most easily be adjusted. The respondent was exposed to double distress. That the property under his charge was liable in poor rates, was never disputed; but two parties claimed payment of them. The question was, which of the parties was entitled to make this demand, and to which of them would the respondent be in safety to pay. The collector for the city was not made a party to the original action raised by the collector for South Leith; but it was obviously necessary that he should be a party, as an attempt was thus made to apply to another parish the assessment which had been previously levied by and applied for the poor of the city. The only competent way in which all parties could be brought into the field to debate their respective preferences was a process of multiplepoinding. If the respondent had not defended the action at the instance of the collector for Leith,
Page: 806↓
Page: 807↓
2. By the law, as well as the universal practice of Scotland, a property cannot be liable to assessment for the poor or other parochial burdens to two parishes at the same time. While every parish is bound to maintain its own poor, it can only do so by an assessment on property within the parish. It cannot assess for that purpose property situated in another parish, neither is it bound to maintain the poor of another parish. A property may be partly situated in one parish and partly in another, and in such a case it may be liable to be assessed proportionally for both; but this is no deviation from the general law. Such property cannot be assessed to its full amount for both parishes, but only for the proportion to each parish corresponding to the value of the portion of the property that may be situated within that parish.
The statute 54 Geo. 3. contains no enacting terms declaring that the property in question is to be subject to a double assessment, and to pay poor rates both to the city of Edinburgh, and parish of South Leith. This being an unusual burden, and at variance with the general law of Scotland, and universal practice of the country, it could only be imposed by clear enacting terms in the act of parliament. But the statute, while it authorizes the magistrates of Edinburgh to levy poor rates from this property in the same way as it is levied on other properties within the extended royalty, does not say that South Leith shall levy poor rates as formerly for that parish. There is no clause declaring that both these parishes shall be entitled to levy poor rates from the proprietors and occupiers of the buildings erected or to be erected on the ground acquired under the act by the
Page: 808↓
When the act declares, that “from thenceforth” the magistrates of Edinburgh shall be empowered to levy poor rates, its plain meaning is, that in whomsoever the right may have been before, it was “henceforth” to be in the magistrates of Edinburgh. The right of levying this assessment was thus transferred from one party to another, but the assessment remained the same. It required no special enactment, that the right of the collector for South Leith should thereby cease, for that right ceased as a matter of course, in the same way as
Page: 809↓
Page: 810↓
My Lords, in construing this act of parliament, especially when it is taken together with other acts affecting these premises, very considerable difficulty has arisen; and I by no means intend to say that the case is free from all doubt, although certainly upon the whole, after the best attention I have been able to give to the arguments, and the best consideration of the various clauses,—some of them I must confess in the different acts apparently made without those making them having at the time exactly in view the former provisions of other acts of parliament—upon the whole I am of opinion that the Court below have come to a right decision, and have adopted a sound construction of the acts in reversing the decision to which the Lord Ordinary originally came; which decision of the Lord Ordinary confirmed the liability of these premises to be rated twice over; their Lordships on the contrary holding by a great majority, almost unanimously, that the proper construction of the acts is, that a single rate only shall be levied.
But, my Lords, there is one part of this judgment of the Court below in which I certainly cannot concur. Their Lordships held that the rate is leviable only once, and that, that rate is leviable by the city of Edinburgh; but then they considered that the city of Edinburgh was liable to pay to the parish of Leith, a certain proportion,—not very clearly defined, I think, in the interlocutor,—yet a certain proportion of the rate, and to appropriate to its own use any surplus which might remain after paying that proportion which Leith has a right to receive.
Page: 811↓
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Now, my Lords, the short reason upon which I hold that it is impossible that this part of the assessment can stand, is, that it is really making an act of parliament. Their Lordships have stated, and justly stated, that the application of the rate by the magistrates and town council is not provided for by the act of parliament; but it does not follow from thence that you are in a decree of the Court, which deals with the law, to supply the defect of the act, and to make a regulation for which there is no warrant to be found within the four corners of the statute. It is indeed also contrary to all principle of rating; this species of rating is new; it is a thing of which one has not heard; and I am not aware, in all the acts which have passed in various sessions for making rates of different descriptions, that there is a single instance of one district rated for the use of another district, and that other district claiming and being allowed to be let in as a rider on the first rated district. Now, if this is, generally speaking, not to be admitted, it is peculiarly not to be admitted in a case like the present, where the question is as to the amount of rate and the mode of applying that rate, not with a view to Leith, but with a view to Edinburgh. It is the wants of Edinburgh that are to be the criterion of the rate to be imposed on these premises; it is in respect of the exigency of the case in Edinburgh, that is to say, the wants of the poor in Edinburgh, and the means of Edinburgh, to provide for those wants. Leith is to obtain a portion of that; and the portion of Leith is to be estimated, (of course it ought to be estimated at least,) not according to the exigency of the case of Edinburgh, but according to
Page: 814↓
My Lords, those reasons, and several others, are very distinctly stated in, I think, the seventh reason which is annexed to the case of one of these parties, and in that seventh reason, to be found on the twentythird page, though there are some things which one cannot go along with, yet certainly the rest of the argument is unanswerable for reversing this part of the finding.
My Lords, this, I must say, in justice to all parties, was not a point that could be given up as part of the finding. One party could not safely give it up, namely, Leith. Leith would, I think, very willingly have given it up, not to be encumbered with the burden in the arguments, if it had been sure that there would have been a reversal in the rest of the case, and that either a double rating would have been allowed, or a rating to Leith would have been allowed. But then, as it was possible that the interlocutor might have been affirmed, and that no double rating might have been allowed, and that Edinburgh would be entitled to levy the single rate, it became those parties to secure themselves against consequences; and they could not give up this part of the finding, inasmuch as by retaining it they made sure of obtaining their proportion, in case, upon other grounds, the judgment of your Lordships should be against them, and the judgment of the Court below affirmed. But I think it was pretty clear, in the course of the argument, that not much reliance was placed upon this part. It is a part of the decree too which their Lordships, in the reasons given, do not afford any satisfactory
Page: 815↓
My Lords, I move your Lordships that this interlocutor be affirmed, with the exception of the finding relating to the payment of a certain proportion to Leith, and the consequential finding to ascertain that portion which Edinburgh is to pay over to the parish of Leith.
The House of Lords ordered and adjudged, That the said interlocutor of the 25th of June 1835, in so far as it finds that “as the property has not been disjoined from the parish of South Leith, nor annexed to any parish in the city of Edinburgh, that the said magistrates and council are bound to pay to the parish of South Leith, or apply to the maintenance of the poor thereof, a part of the assessment so to be levied by them, corresponding to the amount of the assessment for the poor of the parish of South Leith payable for said property, along with the other portion of that parish, and that they may apply the remainder of that assessment, if any, after satisfying the primary claim of the parish of South Leith in maintaining the poor of Edinburgh, or to any purpose to which the poor's money of the rest of the extended royalty may lawfully be applied,” and also in so far as such interlocutor ranks and prefers “the said Peter M'Craw, collector of poor's rates for South Leith, as a rider on the claim of the said collector for the magistrates and council of Edinburgh to the extent of 19 l. 10 s. as the proportion of the said assessment falling to South Leith,” be and the
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Solicitors: Alexander Mundell — Richardson and Connel — Spottiswoode and Robertson, Solicitors.