Provost, Magistrates and Town-Council of the Royal Burgh of Dunbar v Duchess-Dowager of Roxburghe and Others
| Jurisdiction | Scotland |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Court of Session |
English Reports Citation: 6 E.R. 1462
FROM THE COURT OF SESSION.
Mews' Dig. vi. 750; xiii. 1894. See Northam Bridge Co. v. Reg. 1887, 55 L. T. 759.
[335] APPEAL from the court of session. The Provost, Magistrates, and Town-Council of the Royal Burgh of DUNBAR,- Appellants; Her Grace MARY, Duchess-Dowager of ROXBURGHE, and Others, Landward Heritors of the Parish of DUNBAR,-Respondents. [Mews' Dig. vi. 750; xiii. 1894. See Northam Bridge Co. v. Reg. 1887, 55 L. T. 759.] In a parish comprising a borough and a, district of land, the management and maintenance of the poor in the landward district cannot be separate from the management and maintenance of the poor in the borough, but the poor of both must be regarded as the poor of one parish, and indiscriminately entitled to aid from the parish funds. Long usage is of no avail against plain statutory enactments, and it can be binding on parties only as the interpreter of a doubtful law, and as affording a coteimporaneous exposition. Where a statute, expressive as to some point, is silent as to others, usage may well supply the defect, if not inconsistent with express directions of the statute. The general question in this appeal was, whether in a parish, comprising a town and lands of large [336] extent, the poor in the landward district could be disjoined from the poor of the town, for the purpose of their maintenance, and the town funds be made exclusively liable to maintain the poor residing within the town.-It appeared from the pleadings, that the parish of Dunbar, in the county of Haddington, consists of an extensive district, having situated therein the royal burgh of Dunbar. The valuation of the landward part of the parish is £16,993 (Scots), the burph or 1462 dunbar (magistrates of) v. roxburghe [1835] m claek & finnelly. municipality being proprietor of land valued at £30 (Scots), exclusive of the royalty. The total population of the parish was found, by a census taken by the incumbent thereof in 1822, to be 4945, of which number, 3267 resided within the burgh, and 1678 in the landward district. The parties to the appeal had, in the first proceedings taken by them, differed in their statements of the number of poor in the town and country part of the parish, the Respondents stating, that there were 70 within the town and 29 in the country, while the Appellants insisted that the poor amounted altogether only to 80, and that 52 of them resided in or belonged to the landward district, and 28 only belonged to the burgh; but a committee appointed by joint consent in 1834, for the purpose of ascertaining the exact number of poor in the whole parish, and the proportions in town and country, with a view to this appeal, reported that, " 103 persons were then on the regular list of poor, receiving aid from the poor's fund of the parish, 86 of whom were settled within the burgh, and 17 in the landward district, but of those within the burgh some were decayed or unemployed farmers' servants. Fifty of the whole number were born and brought up in the burgh, 10 in the landward district, and the remaining 43 came from other parishes." The population of Dunbar [337] being chiefly seafaring persons subject to various casualties, the number of the poor there is necessarily greater than among an agricultural population of the same extent; and that circumstance, together with the recent breaking up and abandonment of a cotton manufactory in the town, by which several persons who have come thither from other places, were put out of employment and dispersed through the town, increased considerably the disproportion between the town poor and the landward poor. The funds for the maintenance of the whole poor, both of the burgh and landward district, under the administration of the kirk-session, consist partly of a small charitable donation, of collections at the church-door, and incidents at marriages, baptisms and funerals; but the greater part is supplied by assessments voted by the heritors or owners of the land and their tenants, and by contributions from the town, in definite proportions of five-sixths from the heritors, for which they assess themselves, and one-sixth from the town or community of Dunbar, in the name of cess, poor rates and other burdens from traders and proprietors within the burgh. In the year 1823 the heritors objected to that mode of assessment as laying an unequal and unjust burden on the landward part of the parish; and in 1824 they came to a lesolution that in future distinct assessments should be made for the burgh poor and the country poor, and levied from the burgh and from the heritors in the landward district separately, so that each should support its own poor. The provost and town-council objected to the proposed alteration, and after several attempts at a compromise, from 1824 to 1830, the heritors raised an action against the provost, magistrates and members of the town-council, and also [338] against the members of the kirk-session of the parish, as joint administrators, with the heritors, of the poor's funds. They stated, in their summons, that by the statute of 1579, cap. 74 (the' foundation of poor laws in Scotland), " for punishment of strong and idle beggars and relief of the poor and impotent," it is ordained, " that the provosts and baillies of ilk borough and town, and the justice constitute by the King's commission in every parish to landwart, shall (within the time mentioned) take inquisition of all aged, poor, impotent and decayed persons, born within that parish, or who were dwelling and had their most common resort in the said parish the last seven years, etc., and upon the said inquisition shall make one register book, containing their names and surnames, to remain with the provosts and baillies within borough, and with the justice in every parish to landwart, etc.; all poor people within forty days to repair to their own parishes; and the said space of forty days being bypast, that then the provosts and baillies within boroughs, and the judge constitute by the King's commission in ilk parish to landwart, make a catalogue of the names of the said poor people, inquire the men and women where they were born, and thereupon, according to the number, to consider what their needful sustentation will extend to every oulk; and then, by the good discretions of the said provosts, baillies and judges in the parishes to landwart, and such as they shall call to them to that effect, to tax and stent the whole inhabitants within the parish, according to the estimation of their substance, without exception of persons, to such oulklie charge and contribution as shall be thought expedient and sufficient to sustain the said poor people; and the 1463 Ill CLARK & FINNELLY. DUNBAR (MAGISTRATES of) V. ROXBURGHB [1835] names of the inhabitants stented, together with their taxation, to be [339] likewise registrate; and that, at their discretion, they appoint overseers and collectors in every burgh town and parish, for collecting and receiving of the said oulklie portion, who shall receive the same, and deliver so much thereof to the said poor people, and in such manner as the said provost and baillies within borough, and judges in the parish to landwart, respective, shall ordain and command, etc.; and at the end of the year, that the taxation and stentroll be always made of new, for the alteration that may be through death, or by increase or diminution of men's goods and substance." That, by subsequent statutes, the powers previously committed to the judges in parishes to landwart were transferred to the heritors and kirk-session. That, by proclamation of William and Mary, llth August 1692, "the heritors, minister and elders of every parish are required to meet on the second Tuesday of September next, at their parish kirk, and there to make lists of all the poor within their parish, and to cast up the quota of what may entertain them, according to their respective need; and to cast the said quota, the one-half upon the heritors, and the other half upon the householders of the parish, etc.; and the lieges are charged to apprehend beggars, and forthwith to carry them to the principal heritor of the parish where they were apprehended, if it be in landward, and to one of the baillies in towns." That by proclamation, 29th August 1693, their Majesties " require and command the magistrates of our burghs royal to meet and stent themselves, conform to such order and custom used and wont, in laying on stents, annuities or other public burdens, in the respective burgh, as may be most effectual to reach all the inhabitants; and the heritors of the several vacant parishes likewise to meet and stent themselves for the main-[340]-tenance of their said respective poor, and to appoint the ingathering, uplifting and applying of the same for the uses1 foresaid, sicklike and in the same manner as the heritors and elders are appointed by our former proclamation. And for preventing of any question that may arise betwixt the heritors and kirk-session in the several parishes of this kingdom, about the quota of the collections at the church doors, and otherwise, to be made by the said session, to be paid in to the heritors for the end aforesaid, we do hereby, with advice foresaid, determine the same to be half of the said collections." That by proclamation of King William, 3d March 1698, it is further provided, that " because there may some questions arise in putting the said Acts in execution, for which there can be no' general rule set down, power and warrant are given to the ministers and elders of each parish, with advice of the heritors, to decide and determine' all questions that may arise in the respective parishes, in relation to the ordering and disposing of the...
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