Scottish Court of Session Decisions

Peter Chisholm, the pursuer in this action, was Inspector of Poor in the Islay Combination of Parishes, and James Marshall, the defender, was a sheriff officer who had been employed between 1864 and 1869 to recover certain arrears of poor rates due to the Islay Combination, now dissolved, but represented by the three parishes which formerly made up the Combination. It was averred that the defender had failed to account for about £46 of the money which he had recovered, and the summons called for an account of his intromissions during the period above mentioned.

The defender pleaded—“‘ Preliminary—(1) No title to sue. (2) Prescription. (3) Mora and taciturnity. (4) The defender having yearly settled and fitted his accounts with the said Parochial Board of the said Islay Combination of Parishes, and duly paid them all sums recovered by him, the said accounts cannot now be opened up, nor can the accounting and settlement which has taken place between the parties now be challenged. (5) The pursuer's whole statements and pleas are not relevant or sufficient in law to support the conclusions of the action. (6) The said Islay Combination having settled and fitted the defender's account in the full knowledge of the premises, cannot now open up the said accounts on the ground that the charges made were contrary to public statute law. On the merits.—(7) The said preliminary pleas are repeated. (8) The pursuer's statement and pleas being false in fact and untenable in law, the defender is entitled to absolvitor, with expenses. (9) The defender is entitled to compensation for any sum that may be found due to him, in the event of any sum being found due by him to the pursuer, or otherwise to retain the same.”

The Sheriff-Substitute ( Home) repelled the preliminary pleas, and ordered a proof, and his judgement was affirmed by the Sheriff ( Cleghorn). The defender appealed with a view to jury trial under section 40 of the Judicature Act.

Argued for him:—(1) A combination of parishes is not a legal persona entitled to sue as a corporation—8 and 9 Vict. cap. 83, sec. 16: 24 and 25 Vict. cap. 18, sec. 5. (2.) The Board of Supervision has power not only to determine questions but to confer rights of property, and until they have done so here by apportioning to each parish its share of the sum concluded for, it cannot be said that any member of the combination has a title to sue, nor has the pursuer, Chisholm, a title to sue until it is conferred on him by the Board of Supervision. (3) The defender was not employed by the inspector, but by the collector, who is the party who ought to sue; the defender for four years dealt with the collector, who passed his accounts. (4) The pursuer has not averred the terms of the contract of service, which he was bound to do. (5) Having come to the Court of Session under section 40 of the Judicature Act, the defender is entitled to have his case disposed of there, and not sent back to the Sheriff.

Adam, for the respondent, was not called upon.

At advising—