. of Galashiels

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the adjustment of any property, debts, liabilities, or financial relations, may provide for the transfer or retention of any property, debts, and liabilities, with or without any conditions, and for the joint use of any property, and for the transfer of any duties, and for payment by either party to the agreement in respect of property, debts, duties, and liabilities so transferred or retained, or of such joint use, and in respect of the salary, remuneration, or compensation payable to any officer or person, and that either by way of a capital sum or of an annual payment. (2) In default of an agreement as to any matter requiring adjustment for the purposes of this Act, then, if no other mode of making such an adjustment is provided by this Act, such adjustment may be made or determined by the Commissioners."

On 21st January 1892 the Sheriff-Substitute (SPEIRS) dismissed both cases as incompetent, finding the pursuer liable in expenses.

The pursuer appealed, but the Sheriff (HOPE) on 19th February dismissed the appeal, and affirmed the interlocutor appealed against with additional expenses.

I am

"Note.-I find it impossible in the face of the decision of the Court of Session in the case of Temple v. Borthwick, 17th July 1891, 18 R., to do otherwise than affirm the interlocutor appealed against. It was there decided that the Boundary Commissioners are the proper parties to decide the question which was raised, and which is the same as that raised in the present case. unable to understand the reasoning of the learned Judges by which their decision was supported, but it would not be becoming in me to say more on that point than that I read the provisions of the Local Government Act to mean that when the debts, liabilities, &c., of parishes have been fixed, the Commissioners have power to make such financial adjustments as may seem equitable in view of the altered circumstances brought about by the transference of a district from one parish to another.

"If it had been open to me to enter into the question of where the settlement of the pauper is, I should have held, as I did in another case before the decision referred to was reported, that the law of settlement has not been in any way altered by the statute, and that the pauper's settlement continues to be in the parish of Melrose.

"It appears from a memorandum issued in October last, which was referred to at the debate, that the Boundary Commissioners take the same view of the law, and so does the Board of Supervision, as evidenced by the circular No. 11 of process.

"There is little doubt that when the parties go before the Boundary Commissioners some pecuniary adjustment will be made whereby the anomaly of one parish receiving the poor-rates leviable from a certain district, while the burden of maintaining certain paupers in it is laid upon another parish, will be done away with."

The pursuer reclaimed, and argued―(1) On the question of jurisdiction-This was

an ordinary action of relief involving a money claim between two parishes. The question raised was one of law, and could only be decided by a legal tribunal. It might have been raised by the pauper himself, or by another parish than Galashiels, had the relief been given elsewhere, and could not be disposed of by the Boundary Commissioners, whose powers were administrative and not judicial. Further, the Commissioners might in their discretion make no financial adjustment between the disputing parishes, and leave the law to decide any questions which might arise. There was no doubt that the Court had jurisdiction, and there was no reason to justify the Court in declining to do justice between the parties. The contrary view was not supported by the case of The Parochial Board of Borthwick v. The Parochial Board of Temple, relied on by the Sheriff. That was a special case presented by the Boundary Commissioners under the 50th section of the Local Government Act. The Commissioners had detached a portion of one parish and joined it to another, and were proceeding to adjust the rights and liabilities of the two parishes, and the case was presented in order to obtain advice from the Court to guide the Commissioners in the exercise of their statutory duties. In those circumstances the Court declined to give the advice asked, but the decision had no bearing on the present case. (2) On the merits-The paupers in question had not lost the settlements in the parish of Melrose acquired by them prior to the date of the order. The crucial question was, what was the nature of a settlement? A settlement, whether derived from birth or residence, was a personal status conferring a right to be relieved and a liability to grant relief. In the case of residential settlement the theory of the law was, that a person was entitled to relief from a parish to the rates of which he had contributed for five years. In the case of the pauper Hay, Melrose was the parish which had been so benefited. With regard to a birth settlement, it was not necessary to prove in what particular place in the parish a pauper had been born, but only that his birth had taken place within the limits of the parish. Unless the law of settlement was altered by the Local Government Act the defender's parish was liable for the maintenance of both paupers under the previous statute law, and there was nothing in the 49th section of the Local Government Act which could be read as making any alteration on the law of settlement. The order of the Commissioners no doubt effected a territorial alteration on the boundaries of the parishes which would affect the settlements of parties who resided or were born within the transferred area after the date of the order, but there was the strongest presumption against the order being retroactive in its effect. If it were, intricate questions of accounting might be raised between the parishes affected.

Argued for the defender -(1) On the

question of jurisdiction-There was here no case for the decision of the Court. It lay with the Commissioners to adjust any questions of liability between parishes arising in consequence of the order pronounced by them, and the action was therefore incompetent-Parochial Board of Borthwick v. Parochial Board of Temple, July 17, 1891, 18 R. 1190. Assuming that the action was not incompetent, it should be dismissed as unnecessary, in respect both parties were ready to go before the Commissioners in order to have their rights and liabilities adjusted. (2) On the merits -The effect of the Commissioners' order was to transfer the area of ground in question for all purposes, with all the rights and liabilities attaching thereto Local Government Act 1889, sec. 49. As all right of assessment was transferred, and no liability emerged until after the transference, the liability attached to the new parish.

At advising

LORD PRESIDENT - These actions are brought by the Parochial Board of Galashiels against the Parochial Board of Melrose for the recovery of certain monies disbursed by them for the maintenance of two paupers, one of whom was born within a portion of the parish of Melrose, which has since been disjoined from that parish by order of the Boundary Commissioners and attached to the parish of Galashiels, and the other of whom had acquired an industrial settlement in the parish of Melrose by five years' residence in the detached portion prior to the order of the Commissioners. The Sheriffs have dismissed the actions as incompetent, and the first question is whether that is a sound judgment.

The view taken by the Sheriff-Principal is that the decision of this Court in the case of The Parochial Board of Borthwick v. The Parochial Board of Temple, 18 R. 1190, necessitated his dismissing the actions. He entertained the opinion that the Court had there laid it down that a question of the kind here raised was not for the Court but the Commissioners to decide. That seems to me to be an erroneous view of that case. In my opinion the ordinary jurisdiction of this Court and the Sheriff Court is not excluded by any provision of the Local Government Act, and as it is not excluded we must proceed to exercise it.

The

Now, the case stands thus. The Local Government Act appointed certain Commissioners for the purpose of squaring and redding up the boundaries of parishes and counties throughout Scotland. procedure in fixing the boundaries involves the Commissioners examining the lie of the land, and considering the interests of the several rating authorities in the portions which are proposed to be detached from one parish or county and attached to another, and generally having regard to the social and economic conveniences of the parishes and counties concerned in the land which caused an anomalous boundary. The Commissioners have authority under the Act to pronounce orders for the rectification of boundaries, and these alterations

of boundaries, it is declared by the 49th section, shall have effect "for all purposes, whether county council, justices, sheriff, militia, parochial board, school board, local authority, or others," save as thereinafter provided, the exception not bearing on the present question. It was obvious that such changes must make some financial adjustments between the two parishes necessary, the one of which was losing and the other acquiring the portion of land transferred, and accordingly the parochial boards of the parishes concerned are authorisedbeing statutory boards it was necessary that they should obtain statutory authority-to make these adjustments for themselves if they can, but authority is also given to the Commissioners after they have pronounced an order altering the boundaries of two parishes to follow it up by another order adjusting the liabilities of the authorities affected, as may be appropriate in each particular case. Now, all that is a comparatively simple method of procedure in point of principle, for it relates only to details, and it does not involve that the parties or the Commissioners are authorised to determine what are the rights of the two parishes apart from such adjustment. Indeed, it is difficult to discover that when the Act of Parliament says that the order of the Commissioners shall have effect for all purposes, including parochial board purposes, it means that the question of the legal effect of the transfer is also handed over to the arbitrary decision of the Commissioners. It is said that the case of Borthwick v. Temple has decided that such a question as the present is excluded from the jurisdiction of the courts of law, but when I turn to that case I find that it was a decision under the very special provision of the 50th section of the Local Government Act which imposed upon the Court the peculiar duty of answering any questions of law arising in the course of the work of the Boundary Commissioners which the Boundary Commissioners bring before the Court. here we are not considering a special case, and determining whether this is a predicament in which the Court are authorised and bound to advise the Commissioners, but we are dealing with two disputants, one asserting his right to a sum of money as a consequence of an alteration of the boundaries between two parishes, and the other denying it. Accordingly, I regard the case of Borthwick as a decision solely on the limits of the new jurisdiction con ferred on the Court by section 50, and I do not accept it as applicable to a totally different case.

But

The case of the pursuers is very simple. They say "We have got a piece of the parish of Melrose. One result of this change is that we now lock after the administration of the poor law on this piece of ground, and we have given relief to two paupers living there, but we find that these paupers have no settlement in the parish of Galashiels, because the one was born in Melrose and has acquired no settlement in Galashiels, and the other has

. Bd. of Galashiels

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acquired an industrial settlement in that parish and not in Galashiels." The answer is a very singular one. It is said that the words which I have quoted from section 49, which purport to be words dealing with the future, carry with them this peculiar result, that you must distort historical facts to this extent, that in place of recognising the fact that a person has lived for five years prior to the order of the Commissioners in a place which until the date of that order undoubtedly was in the parish of Melrose, you must now hold that all the time, long before the Act was passed or the Commissioners came into existence, he was living in the parish of Galashiels. That would be a very startling result, but it seems to me unnecessary in order to satisfy the requirements of the language of the section to reach it. The good sense of the thing points to what I think is the result of the enactment. The Act changes the poor law authority for the detached district, but it carries over the district with its existing liabilities against the old parish which the individual history of the pauper has created against it.

When the nature of the case is looked at it seems to me that two things become clear. In the first place, this is a purely legal question as to the effect of the Local Government Act on the previous statute law of the country. The fact that the Local Government Act leaves previous rights as they were, does not prevent this from being a question of law to be settled between two disputants, and I am of opinion that the case of Temple is not applicable to a case of this kind. That was a decision on a special case submitted by the Boundary Commissioners under section 50, and it by no means precludes us from doing justice in the matter now before us. On the merits I confess the case seems to me to be very clear. I read the Act as affecting settlement to this extent, that from and after the date of any order by the Commissioners dealing with the boundaries of parishes, the effect of residence in a particular place will be determined, so far as poor law rights are concerned, by the boundaries so fixed, but I find nothing in the Act which ascribes a retrospective effect to the changes so as to alter the liability in the case of individuals otherwise than it would have been altered had they migrated to the new parish at the date of the order. I am therefore for recalling the interlocutors pronounced in the Sheriff Court, and giving decree in both cases.

LORD ADAM-We have here to deal with two actions, the most prominent being that of Mrs Hay, who resided in the parish of Melrose for a continuous period of five years prior to 11th June 1891. On that date an order was issued by the Boundary Commissioners, which separated that part of Melrose in which Mrs Hay lived from the rest of that parish, and adjudged it to belong in future to Galashiels. On 26th August 1891 Mrs Hay became a proper object of relief in the parish of Galashiels,

and that parish as in duty bound gave her relief. The object of the present action is to obtain a return of the money so expended. The action is of a most ordinary kind, and is one of which we have constant experience, and I can see no reason why we should not decide a question of the kind raised between two parochial boards. It is said that we are precluded from entertaining the question by the decision in the case of Borthwick v. Temple. I agree with your Lordship that that is not So. That case was a very peculiar one, which was not brought by two competing parochial boards, but at the instance of the Boundary Commissioners, in the form of a special case inviting the opinion of the Court under the 50th section of the Local Government Act. Whether the Court was right or wrong in the view which was taken in that case, I do not think it has any bearing upon the present. Here there are two litigants, each with a patrimonial interest in the result of the action, and accordingly the present action is clearly differentiated from the decision in the case of Temple.

Upon the merits the question is, whether the inspector of Galashiels Parish is right in his contention that Melrose is the parish of the pauper's settlement? It is not disputed that prior to 11th June 1891 the pauper had acquired a settlement in Melrose by a residence of upwards of five years. Has she been deprived of the benefit of that settlement, or has she done anything to lose the residential settlement so acquired? All that has happened is that by the order to which I have referred a portion of the parish of Melrose has been detached from that parish, and is for the future to be treated as part of the parish of Galashiels. The circumstances are not different from what they would have been if this pauper had voluntarily left the parish, and had gone to live in another. It was said by Mr Jameson that it is the particular piece of ground on which the pauper lived which must be looked at, and that being so, that it must be held to be part of the parish of Galashiels for all purposes. This is not so. The simple question which we have to consider is, where was the residential settlement acquired, and upon the merits of that question I think the inspector of Galashiels is right. I am therefore of the same opinion with your Lordship.

In the other case, where the settlement is a birth settlement, I think the same result must follow.

LORD M'LAREN-These two actions are of the nature of claims of relief by the inspector of poor of one parish against the inspector of another. The actions are in a form with which we are familiar, and of which there are abundant examples in the reports. The question comes before us for decision in precisely the same way as if the paupers were themselves suing for relief, because it is in right of the paupers' claim that the parish which afforded temporary relief comes to the Court to have the

incidence of the relief shifted to the parish of settlement.

I am not surprised that the Sheriff should have been embarrassed by the opinions in the case of Borthwick v. Temple, but I agree with your Lordship that apart altogether from that case, we must decide the question of right when brought before us in a competent form. At

the same time I also think that the case of Borthwick, when rightly understood, is in no way inconsistent with the decision which we are going to pronounce. The case of Borthwick was brought under the 50th section of the Local Government Act, which conferred what may be called a consultative jurisdiction upon the Court, and, as we understood the statute, that jurisdiction was confined to questions of law in which the Boundary Commissioners had an interest. The present is a question of fact, not of law, although no doubt, as in many questions of fact, there is law underlying it. The question of fact is, where have these paupers their settlements? There are perhaps some expressions in the opinions of the Judges in the case of Borthwick which go beyond what was necessary for the immediate decision of the case, and I take my full share of responsibility for these. But plainly what was decided there was only this, that in the exercise of that special statutory jurisdiction we did not see our way to deal with a claim relating to the liability for the maintenance of an individual pauper, and still less with the possible consequences which were the subjects of the second and third questions of the case.

Coming to the merits of the two actions which we are here considering, I think it is possible to arrive at a satisfactory determination without taking any account of the cognate question where a pauper has resided for the necessary period, partly in a detached portion of a parish, and partly elsewhere in the parish. Taking first the case of the residential settlement, as the point presents itself to my mind, the woman had acquired an industrial settlement by residing for five years in the parish of Melrose, and consequently she has a claim of relief against that parish. It is of no consequence, so far as that claim of relief is concerned; at what spot within the parish she resided, because the parish is an indivisible area in all questions of settlement, and it is by no means necessary to prove all the various places where the pauper has resided if only the general fact of an industrial residence within the parish is made out. The law is clear that an industrial settlement once acquired will continue until it is lost by non-residence, or until, as in the case of marriage or forisfamiliation, a new settlement has been obtained. Prior, then, to the disjunction of a part of Melrose Parish the pauper had acquired a settlement in that parish, and such a settlement, according to settled principles, must remain until it is lost in the ordinary way. I quite grant that it may be lost by carrying away that part of the parish in which she is living, just as it

would be lost by migration to another parish. But time is the important element, and the settlement will not be lost by migration, or by the disjunction of the pauper's abode from the parish except by non-residence for the necessary legal period. The cases which have been figured of residence in various parts of the parish do not therefore appear to me to affect the case, and I think the birth settlement is really identical with the residential, because it will continue until another settlement has been acquired, and none has been acquired here.

On these grounds I am of opinion that the claim of the inspector of Galashiels is well founded.

SECOND DIVISION.

[Sheriff of Lanarkshire. REID v. COYLE.

Reparation - Slander - Privilege — Statement by Physician Called in to See Patient.

Amidwife brought against a physician an action of damages for slander in which she averred that the defender was called in to see a patient whom the pursuer had attended, and that on hearing that the pursuer had given the patient a drug to soothe her pains, the defender, conceiving that it would be a favourable opportunity for indulging his hostile and malicious feeling towards the pursuer, falsely, wickedly, calumniously, and maliciously stated to the patient's husband that the pursuer had poisoned his wife.

An issue not containing malice and want of probable cause proposed by the pursuer for the trial of the cause approved, the Court holding that although prima facie a case of privilege was stated on record, yet it was not absolutely clear at that stage that the case was one of privilege, and that if the evidence at the trial raised such a case, it was the duty of the judge to direct the jury that malice on the part of the defender must be proved before they could find for the pursuer.

Mrs Elizabeth M'Connon or Reid, midwife

v. Coyle

12

78 George Street, Whiteinch, with consent of her husband as her curator and administrator-in-law, raised an action in the Sheriff Court of Lanarkshire at Glasgow against Edward Coyle, druggist, 300 Dumbarton Road, Partick, and licentiate of the Faculty of Physicians and Surgeons, Glasgow, for the sum of £250 as damages and solatium for slander.

The pursuer averred that the defender had entertained feelings of malice towards her since September 1891 on account of her having without his consent prescribed for a child whom he was attending as medical man at that time. She also averred that the defender had looked

upon her " as his opponent in his profession, and his enemy, and had taken every opportunity that appeared of injuring her.' The pursuer set forth the circumstances in which the alleged slanderous statements were made, as follows-"(Cond. 5) In or about the month of September 1891 the pursuer was engaged by Mrs Agnes Moore, wife of Stephen Moore, 42 Smith Street, Whiteinch, to attend her in childbed. The pursuer had attended Mrs Moore on three previous occasions of childbirth. About half-past four o'clock on Monday morning 12th October 1891, Mrs Moore's husband came to the pursuer's house, and knocked her up out of bed, and told her his wife had been very ill during the night with labour pains, and asked her to go to see her. The pursuer accordingly accompanied him to see his wife. When she arrived she found Mrs Moore suffering from severe pains, and on examining her discovered she had symptoms of premature labour-indeed, that premature labour had commenced. Mrs Moore stated she felt very weak, and asked the pursuer if she could not give her something to soothe her pains. The pursuer answered that she could give her a little 'labour tea' (that was, ergot of rye) which would probably soothe her pains, and which pursuer had been taught was the proper treatment in such cases. Mrs Moore agreed to take it, and the pursuer measured and gave her half a teaspoonful of the ergot of rye. After getting it Mr Moore said she felt a little better, and inclined to sleep, and pursuer remained with her for an hour or so and then went home, but she left instructions that if Mrs Moore became worse in the morning she was to be sent for. The pursuer was not sent for that morning, but in the evening she received a message that she would not be further required as a doctor had been called in. (Cond. 6) The pursuer believes and avers that Mrs Moore's illness continued, and that the defender was called to see her on Wednesday the 14th October 1891, and on hearing that the pursuer had given her a drug to soothe her pains, he, without so much as inquiring at the pursuer what the drug was, or what dose had been given, and conceiving that it would be a favourable opportunity for indulging his hostile and malicious feelings towards her, falsely, wickedly, calumniously, and maliciously stated to Mrs Moore's husband, the said Stephen Moore, that the pursuer had

poisoned his wife. The statement was made in the said Stephen Moore's house at 42 Smith Street, Whiteinch, and was made in a malicious spirit, with the view of injuring the pursuer in the practice of her art as a midwife. (Cond. 7) The pursuer believes that Mrs Moore's illness continued and that she gave birth to a child on Friday morning 16th October 1891, which survived till the evening of the following day, and that she herself died on Sunday 18th October. (Cond. 8) The defender further indulged his hostile and malicious feelings against the pursuer by falsely, wickedly, calumniously, and maliciously stating to the said Stephen Moore, on or about Saturday 17th October 1891, in his house at 42 Smith Street, Whiteinch, that his wife was dying and might not live till night, and that the pursuer had poisoned her by the drug she had given her, or using words of similar import and effect, meaning thereby that the pursuer had poisoned Mrs Moore, and that she was dying in consequence. (Cond. 9) The defender met the said Stephen Moore on Dumbarton Road, Partick, on or about Monday 19th October 1891, after Mrs Moore's death, and further, in pursuance of his hostile and malicious feelings towards pursuer, falsely, wickedly, calumniously, and maliciously stated to him that there was no doubt his wife had been poisoned by the pursuer, and died in consequence, and advised him to give information to that effect to the police authorities so that she might be charged with and put upon her trial for that crime. (Cond. 10) The said Stephen Moore accordingly called at the police office in Partick the same day and lodged information that his wife had been poisoned by, and had died from the effects of, the drug given her by the pursuer. (Cond. 11) The defender, in further pursuance of his hostile and malicious feelings towards pursuer, falsely, wickedly, calumniously, and maliciously, and without probable cause, stated to Archibald M'Kenzie, detective officer, Partick, on or about Tuesday 20th October 1891, in Dumbarton Road, near Whiteinch (while Mr M'Kenzie was mentioning to him that a post mortem examination was to be held that day), that Mrs Moore had been poisoned by a drug of some kind given to her by the pursuer which had caused her death."

The defender lodged defences to the action, in which he denied that he entertained feelings of malice towards the pursuer, and averred that he had no personal knowledge of the pursuer, and had no recollection of ever having met her. With regard to the alleged slanderous statement on 14th October 1891, he denied having made it, subject to the following explanation:-"Dr Macaulay was the medical man who was called in to attend Mrs Moore, the defender being called in afterwards merely as 'consultant.' Dr Macaulay was called in on the morning of Monday, 12th October, and the defender's first visit was made in company with Dr Macaulay on Wednesday the 14th. They examined the patient to