Scottish Court of Session Decisions

Lord President—In this case the pursuers, who are the Parish Council of Paisley, and who are maintaining a pauper of the name of Elizabeth Craig or Wright, bring into Court two other parish councils, upon one or other of whom the burden is said to lie. It is a very well-known form of process. Of course, in some cases the two parties who are brought into the field argue that after all the pursuers are the persons liable; but this case does not seem to be one of that kind, the real matter of contention lying between the two defenders. Now the pursuers brought the case in the Sheriff Court and asked for decree to ordain the defenders to free and relieve the pursuers first of all of the sum of £11, 2s. with legal interest thereon from the 24th January 1905 till payment; and second, of all further sums which the pursuers may have to pay subsequent to the 31st October 1905. The condescendence attached to the petition sets forth the circumstances of the case and goes on to state that by agreement among the parties this action has been brought into Court of consent for the purpose of having the question of law at issue decided, really as between the two defenders. Then certain questions of fact which are said to be admitted are given. The answer 7 of the Glasgow Parish Council is “Admitted” subject to exceptions and explanations which do not touch the matter. The answer of the Row Parish Council is “Admitted.” Now, previous to the debate, and indeed previous to the closing of the adjustments, the pursuers, probably having in view the case of Den v. Lumsden ( 1891, 19 R. 77), put in a minute of restriction in which they say that they do not in this action press the claim made in the second conclusion of the prayer of the petition, namely, for payment of the sums which they might have to pay subsequent to the 31st day of October 1905. The case then proceeded to a decision upon the merits. The learned Sheriff-Substitute found that the true debtors were the Parish Council of Row, and that decision was upheld by the learned Sheriff. The Row Parish Council then appealed to your Lordships, and at the calling of the case the appeal was objected to as incompetent by the Parish Council of Glasgow, upon the ground that the amount involved is underneath the £25 limit.

That objection seems to me rather strange in view of the admissions of the Glasgow Parish Council in reference to the statement which I have read as made by the pursuers. But I have come to the conclusion that there is no good objection to the competency here. There was an argument, coupled with the citation of two cases of Stirling Parish Council v. Perth Parish Council ( 1898, 25 R. 964) and Tait v. Lees ( 1903, 5 F. 304), as to the effect of the minute of restriction, that is to say, as to the precise date at which it speaks. That is a question on which there seems to have been some difference of judicial opinion. In my opinion it is rather a difficult question, and I wish to say that upon that matter I entirely reserve my opinion, because in the view I take I do not base my judgment upon the minute of restriction at all. I am content to take the action as raised upon the first conclusion of the summons.

There is a long series of cases bearing on the matter at issue, many of which were quoted to us, but I think the general principle to be deduced from them is simple enough. Prima facie the value of a case is to be tested by the conclusions of its summons. That is the first rule. But that rule suffers certain exceptions. If those conclusions, even although expressed in a pecuniary form, really come to be in fact conclusions ad factum prœstandum, then the monetary limits do not apply; and, secondly, there is this other exception, that a case which is upon the face of it underneath the limit may yet by its decree determine a question the value of which, when estimated pecuniarily, is above the limit.

The best illustration of what I have said is the case of Drummond v. Hunter ( 1869, 7 Macph. 347), which is a case about a lease. There the particular sum in dispute was under the limit; but inasmuch as it was a seven years' lease, the other years when taken into consideration raised the sum above the limit, and it was held that the limit did not apply. I think the true test accordingly is — can this determination, whatever it is, be res judicata upon a matter that will come up again? That, of course, must be subject to this consideration, that when you say a matter will come up again it must be one that is likely to come up again in the ordinary course of circumstances. It must not be something which theoretically can recur, because, of course, theoretically anything may recur; and thus I am in entire agreement with the case of Stirling v. Perth. There the question, although in one sense a question of the liability for a pauper, was not so in another sense. The sum in dispute there was a sum which had to be paid in respect that certain children had been taken charge of by the police under the provisions of the Cruelty to Children Act. Now that was a circumstance which would not in the ordinary and natural course of affairs occur again;

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