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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Melrose Parish Council v. Hawick Parish Council [1912] ScotLR 749 (12 June 1912)
URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0749.html
Cite as: [1912] ScotLR 749, [1912] SLR 749

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SCOTTISH_SLR_Court_of_Session

Page: 749↓

Court of Session Inner House First Division.

(Single Bills.)

[Sheriff Court at Hawick.

Wednesday, June 12. 1912.

49 SLR 749

Melrose Parish Council

v.

Hawick Parish Council.

Subject_1Sheriff
Subject_2Process
Subject_3Appeal
Subject_4Competency — Value of Cause — Continuing Liability no longer Involved — Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51), sec. 28.
Facts:

In an action raised in the Sheriff Court by the parish of M. against the parish of H. for (1) repayment of a sum of £17 odd expended by them for behoof of Y., a patient in the district asylum, and (2) relief of future advances, the Sheriff assoilzied the defenders. At the date of the judgment Y. had recovered and had left the asylum. On the pursuers appealing to the Court of Session objection was taken to the competency of the appeal on the ground that as Y. had recovered no question of future liability was involved and that accordingly the value of the cause was beneath the statutory limit.

Held that the appeal was incompetent.

Headnote:

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 28, enacts—“Subject to the provisions of this Act, it shall be competent to appeal to the Court of Session against a judgment of a Sheriff-Substitute or of a Sheriff, but that only if the cause exceeds fifty pounds . .

Mrs Janet Young, wife of William Young, baker, Hawick, was admitted as a private patient into the Roxburgh District Asylum on 24th October 1910. Her board was paid by her husband up to 24th January 1911,

Page: 750↓

when he declined to make further payment, owing, as he alleged, to inability to do so. The Asylum then called upon the Parish Council of the parish of Melrose (the parish in which the asylum was situated) to pay for her maintenance, and this they did from 24th January to 15th August 1911. The relieving parish ( pursuers) then brought the present action against the parish of Hawick (the parish of the husband's settlement) ( defenders) for repayment of the sum so expended.

The crave of the initial writ was as follows—“To grant a decree against said Parish Council of the parish of Hawick for payment to pursuers of Seventeen pounds, nine shillings and one penny sterling (£17, 9s. 1d), with interest from the date of citation; to ordain the defenders to free and relieve the pursuers of all further alimentary or other advances which the pursuers may make on behalf or on account of said pauper, so long as she may require parochial aid, and her parochial settlement continues to be in said parish of Hawick, with interest from the respective dates of the advances till payment, and to find the defenders liable in expenses.”

At the date when the action was raised Mrs Young was still a patient in the asylum, but she subsequently recovered and left the asylum on 17th August 1911.

On 8th March 1912 the Sheriff-Substitute ( Baillie) found that the defenders were bound to pay the pursuers' advances and granted decree therefor.

The defenders appealed to the Sheriff ( Chisholm), who on 17th May 1912 assoilzied the defenders.

The pursuers having appealed, the defenders objected to the competency of the appeal on the ground that as Mrs Young had recovered no question of continuing liability was involved, and that accordingly the appeal was incompetent on the ground of value. They cited— Paisley Parish Council v. Glasgow and Row Parish Councils, 1907 S.C. 674, 44 S.L.R. 520; Duke of Argyll v. Muir, 1910 S.C. 96, 47 S.L.R. 67; and David Allen & Sons' Billposting, Limited v. The Dundee and District Billposting Company, Limited, 49 S.L.R. 716.

Argued for pursuers—The appeal was competent. The pursuers craved the Court to determine the question of continuing liability, and it was immaterial that the patient had recovered. Such recovery might be only temporary. The criterion of value was the conclusions of the summons, and when these were looked at it was obvious that the action was not merely one for £17 odd. They cited Cairns v. Murray, November 21, 1884, 12 R. 167, 22 S.L.R. 116, and Tait v. Lees, January 13, 1903, 5 F. 304, 40 S.L.R. 253.

 Judgment:

Lord President—I think that this appeal is incompetent, and the grounds on which I do so are the grounds which I set forth in the case of the Paisley Parish Council v. Glasgow and Row Parish Councils, 1907 S.C. 674. Of course the decision there was the other way, because it practically determined a question of continuing liability, which liability in the circumstances of that case might reasonably be expected to amount to more than £25. In this case there is no question, as I understand, of continuing liability to decide, because the woman who was a lunatic has recovered, she has left the asylum, and the whole bill incurred never can amount to £50, which is now the pecuniary limitation of the right of appeal. To read a single sentence of what I said in the Row case—“The common-sense test seems to me to be simply this, Is the Court asked to decide a practical question of continuing liability, or is it not?”

I think that is always a practical question, and that it is so here. We are not asked to decide a question of continuing liability, and therefore I think this appeal is incompetent.

Certain cases have been quoted to us, and I wish to reserve my opinion as to whether the case of Tait, 5 F. 304, does not on principle really conflict with what was said in the case of Paisley Parish Council and in the very much later case of Allen & Sons; but so far as this case is concerned there is no conflict, for this very good reason—in Tait's case the sum on the face of the summons clearly exceeded £25, which was then the limit of value, whereas here the sum on the face of this initial writ is under £50. Accordingly, taking the first rough test of competency, viz., what is upon the face of the summons, this appeal is incompetent. In other words, you have got to say that the question is one of continuing liability in order to make the appeal competent. If, as I have already said, you look at the matter in a practical way and find that it is not a question of continuing liability, then cadit questio. So far as I myself am concerned, I should like to say, although it is a practical question, and although, as I put it in the Paisley case, it is not enough to say that it may theoretically recur, yet if I can suppose that this woman became insane again and happened to be put in an asylum in the same parish—because that is necessary to support the hypothesis—I do not think the case would be res judicata, because I think the decision of this Court that the appeal is incompetent in respect that no question of continuing liability is raised, reduces the matter to a mere question whether a particular sum of £17, 9s. 1d. is or is not due. On these grounds I am of opinion that the appeal is incompetent.

Lord Johnston—I agree that appeal is incompetent in the particular circumstances of this case. But I think it is necessary in order to arrive at a judgment really to know what the merits are. I have read the record and the judgments of the two Sheriffs, and I find that the case is this—it so happens that the district asylum for Roxburgh, Berwick, and Selkirk is situated in the parish of Melrose; a particular lunatic from Hawick was sent there as a private patient and was paid for for six months, but then her husband, pleading

Page: 751↓

inability to continue the payment, ceased the payment, and a question has arisen between the parish of Melrose, who were called upon by the Asylum authorities to accept initial responsibility after the husband ceased to pay, and the admitted parish of the lunatic's settlement as to the liability for her board. The question at issue is therefore not the ordinary question of the settlement of the lunatic. It is a question of whether the lunatic was a pauper or not. That question might have involved one of continuing liability, because the pauper might have continued a lunatic and the obligation to maintain her might have continued. But we are told that the lunatic is now well and has been removed from the asylum, and that the present obligation to pay for her has ceased. In these circumstances there is no continuing liability possible, because if she turns out only to have had a lucid interval and has to be sent back to the asylum, the question of the husband's capacity to maintain her arises de novo in different circumstances. While, then, the appeal is incompetent as the value at stake is below the limit, if there had been a question as to the pauper's settlement there might very well have been a question of continuing liability, because no one can tell whether the convalescence is to be permanent or is merely a lucid interval.

Lord Kinnear—I agree with your Lordship for the same reasons. I shall only add that I think the case of Tait v. Lees, 5 F. 304, is distinguishable. In that case the parties had joined issue in the Sheriff Court as to liability for an amount which would have allowed a decision to be appealed, and after they had joined issue a minute of restriction was put in, reducing the value of the cause to less than £25. The only question was whether the restriction of the conclusions of the summons after the parties had joined issue had or had not the effect of rendering the case unappealable. I do not think that applies to any question we have to consider here.

Lord Mackenzie was absent.

The Court sustained the objection.

 Counsel:

Counsel for Pursuers— Kemp. Agent— James D. Turnbull, S.S.C.

Counsel for Defenders— MacRobert. Agents— Sibbald & Mackenzie, W.S.

 1912

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