merits, were stated for the defenders. The first plea for the defenders is, or rather would have been, of the greatest importance had it been pled by the pursuers, as it is admitted on both sides that the question raised under it was whether the Sheriff had jurisdiction here to go into the merits, or whether his duty was ministerial; and it was consequently imperative to pronounce decree without entering into the merits.

The Commissioners of the Caledonian Canal maintain that when all deductions to which they are entitled are made, nothing remains of revenue which could be assessed. That is what may be called the merits of this question if they could be gone into, but the leading plea was that they could not be gone into at all.

The first interlocutor that deals with the question as we are now speaking of it is that of the Sheriff - Substitute - Inveraray, 29th April 1875. The Sheriff - Substitute having heard parties' procurators, and made avizandum, Finds, as regards the conclusion for poor-rates, that the Sheriff's duties are only ministerial, and that the defenders' pleas as to the assessments being imposed on too large a valuation cannot therefore be entertained in the Sheriff-court." And in a note he adds It seems to the S.-S. sufficiently settled by the cases of Calder v. Trotter, 8th June 1833, 11 S. 694, and Pollok, 12th November 1833, 12 S. 14, that the Sheriff's duties as regards the recovery of assessments under the PoorLaw are purely ministerial, and he sees no reason to doubt that the law as laid down by these decisions is as much in force as ever, though he understood the defenders' procurator to suggest that this was not the case. It is therefore beyond his power to inquire into the justice of the assessment; the defenders' objections to it may possibly enough be perfectly good, but they cannot be entertained in the Sheriff-court."

So, that not merely by opinion, but by the very words of the interlocutor, the thing determined on is that here the duties of the Sheriff are purely ministerial, and that it is a matter into the merits of which the Sheriff cannot enter. Thus, the only question for us to decide is whether that is or is not a correct finding. Matters may remain behind, but that is all we have to do with here.

No doubt this is an important question. My opinion is that the finding is not well founded; that the Sheriff here is not acting ministerially, but judicially; and consequently is not precluded from entering into the merits of the question.

It is plain enough that, but for the decisions of Calder and Pollok, the Sheriff, at all events, would have hesitated in arriving at the conclusion he did. He says "It appears to the Sheriff that there would be much force in this argument could the question be considered as still open; but the plea was urged unsuccessfully in two cases already referred to in the course of these proceedings, viz., Calder v. Trotter, June 8, and Pollok v. Robertson, November 12, 1833. In the latter case the plea maintained for the defender had the high sanction of the Lord Ordinary (Fullerton), but failed to convince the Judges of the First Division, who unanimously altered the interlocutor. It is true that these judgments

Feb. 4, 1876

Canal v.

were given before the passing of the Poor Law Amendment Act of 1845, but it does not appear that this affects their application. The Parochial Board comes substantially into the place of the heritors, and minister in matters relating to the relief of the poor; and by section 40 of the Act remedy is reserved to any one who considers himself aggrieved by any assessment-in the like form and on the same grounds as at the date of the passing of the Act was competent to any party who considered himself aggrieved by any assessment imposed under the statutes then in force for the relief of the poor.' Nor is it unimportant to observe that for the thirty years during which the Act has been in force, and amidst the many questions that have arisen under it, no decision has been pointed out contraverting the principle involved in the earlier cases referred to."

The only material question is whether this is so or not, whether these two decisions of Calder and Pollok are in point or not. That leads us to examine what were the grounds of those decisions, and I think it very clear that the grounds of those decisions were these, viz., that the heritors and kirk-session, in the matters committed to them with respect to the administration of the Poor Laws, were substantially acting as a court; that they had, properly speaking, a jurisdiction conferred on them; and that, as they were a court, and there was no law and no statute conferring power on the Sheriff to review the decisions of that court, the Sheriff, if he interfered at all, could only act ministerially, and the Supreme Court alone could review the decisions of the heritors and kirk-session-not in virtue of any statute, but of its own inherent power to review all decisions where there is no statutory exclusion. I think also that the above ground of judgment was a sound and right ground, and that the whole series of proclamations go to show that this was a sound view, and that, in point of fact, the Supreme Court here had jurisdiction, because its jurisdiction was not excluded, and the Sheriff had not, because on him jurisdiction was not conferred. There is no law that the Sheriff can review the judgments of other inferior courts. Unless conferred on him by statute, the power does not exist in him, and in that case though he may have ministerial functions (and he has many ministerial functions), yet he cannot have judicial functions. I do not propose to go over the proclamations, but I have come to the same conclusion as the Court did in the case of Calder, viz., that the judgments of the heritors were subject to advocation, which could not have been the case unless they were of a judicial character. This leaves the question whether the Parochial Board now is in the same position as the heritors and kirk-session were before 1845, that is, whether they act as a Court. Sheriff assumes that they are, but it is a serious thing to assume. There is no presumption that what they do is final and not subject to the review of the ordinary courts of the country. It is a strong thing to say the Sheriff cannot review the proceedings of any board. There is nothing in the nature of the Parochial Board to exclude their being set right, and the only plausible argument in their favour is that they come in the place of a body who had such powers and privileges. But it does not follow that they succeed to these powers and privileges.

The

Canal v. M'Tavish

4, 1876

It would be a great misfortune if it were so. There is no reason prima facie why the Sheriff should not have power to correct these errors just like any others. If he goes wrong, there is the Supreme Court above him to set him right.

Then there is the suggestion that section 88 of the Poor Law Amendment Act contains a code of procedure in reference to this matter beyond which you cannot go. The plausibility of this rests on the fact that that section introduces by way of enactment that the machinery employed in recovering the land and assessed taxes shall be applicable to assessments for the relief of the poor, and then provides that it shall, nevertheless, be competent to sue in the Small Debt Court, and the inference drawn is, that therefore no other court is permitted. If that be so, it certainly seems an unlikely result. The Sheriff quite misapprehended this section, for he says-"The Poor Law Amendment Act expressly providing by section 88 that all such assessments shall be recoverable in the Sheriff Courts.'

This is quite wrong. It seems to me impossible to hold that this section was meant as a code, with all the expense and oppression which might result sometimes from the use of these summary warrants. Section 88 really goes all the other way. When you have a special provision as to the Small Debt Court, and you infer from that that other courts are excluded, you must remember that the inference also is very strong that if the Small Debt Court is specially put in, the jurisdiction of the others would require to be specially excluded, for in that case the presumption would be that they had jurisdiction before. The real reason was to remove all doubts of competency in the Small Debt Court. I do not know if it would have been, but it might have been thought that it was incompetent to proceed in the Small

Debt Court.

But

It was argued ingeniously by Mr Mackintosh that in the new Act you must find the new jurisdiction of the Sheriff expressly conferred. But that is not sound. The Sheriff always has jurisdiction, and why he had it not here was because it had been given to another inferior court. when that inferior court is swept away, then his jurisdiction revives. It is quite clear that is the reason. I can only add that I think the decisions of Calder and Pollok were perfectly correct, and are perfectly reconcileable with the judgment of to-day. I am therefore of opinion that the find-. ings of the Sheriff and Sheriff-Substitute should be recalled.

LORD ARDMILLAN-I cannot say this matter is unattended with difficulty. The action commences in the Sheriff's ordinary Court at the instance of a party seeking to recover assessments. This action was met by a defence that the assessments were not due. Into that question I do not go.

The Sheriff-Substitute decided for the pursuers, and gave decree, and when he does so he states that the duties of the Sheriff as regards the administration of the Poor Law are purely ministerial. That judgment is appealed, and the Sheriff affirms it. The ground of the judgments of both was, that this action was one where the Sheriff was bound to proceed in a purely ministerial capacity. At first sight this seems to involve a rather peculiar position for a British subject. I have always thought that assessments

should be laid on by a party whose acting is reviewable or recorded by a decree of a Judge whose decisions are so also-for to say that here there is no power in the way of resisting the demand for payment is very startling. Is it, then, the case? But for the cases of Calder and Pollok the Sheriff indicates that he would have come to another decision.

My view of these cases is, that prior to 1845 the heritors and kirk-session were in the position of a party coming to a resolution reviewable by this Court, and not by the Sheriff, and therefore that when the Sheriff proceeded, he was acting in a ministerial way as regarded the heritors. That is the result of the finding of the Court in the cases of Calder and Pollok. But when we come to 1845, then I do not see that the Parochial Board occupies the same position in this matter that the heritors and kirk-session did. A judgment of the Parochial Board has never been brought directly here. The Parochial Board may go to the Sheriff and get him to enforce their judgment; and if they do that the Sheriff proceeds ministerially. But the Act of 1845 gives them power to go otherwise; they may go for judicial interposition in his Small Debt Court. Does section 88 then create a code of procedure? The present respondents cannot possibly say it does, for they brought their action in the Sheriff's ordinary Court. A Sheriff of a Scotch county in his ordinary Court is in that Court a Judge, and his character is judicial, unless the contrary clearly appears from statute. His decision is a judicial decision, because he is a Sheriff. In his ordinary Court he dealt with this matter, and was asked for expenses. If the contention of the respondents be correct, why did they ask for expenses? Does the Sheriff act half in a judicial and half in a ministerial capacity? They crave expenses, and then say the judgment is purely ministerial. If taking the cause to the ordinary Court was competent at all, it was competent only on the footing that justice should be done. I think the Sheriffs have here taken an erroneous view.

LORD MURE-I come to the same conclusion. I agree substantially that the Parochial Board, created by the statute of 1845, is not to be conconsidered as acting in a quasi-judicial capacity; that prior to that the heritors and kirk-session did act in a quasi-judicial capacity; and that consequently the decisions of Calder and Pollok have here no application. The whole procedure as regards assessments was altered by the Act.

Formerly the Sheriff acted simply ministerially in anything connected with the poor-rates levied by the heritors and kirk-session, and his duties were limited to enforcing their decrees. But by Act of 1845 all this was set aside, and by section 88 a change was made in the mode of procedure, for the machinery used in recovering the land and assessed taxes was made available here, and in acting with respect to that he was only to act ministerially. But the 88th section further gives a method of proceeding in the Small Debt Court. This necessarily involved judicial determination by the Sheriff in it, and that shuts out the idea of holding the Sheriff to act ministerially in all cases. At first sight section 88 looks like a code of procedure, but from the above fact I think it would be dangerous to exclude the Sheriff's ordinary jurisdietion. In

disposing of a case in the Small Debt Court he might find it necessary to transfer it to his ordinary roll, and therefore I agree in thinking that his common law powers should here be exercised. The LORD PRESIDENT was absent.

The Court pronounced the following interlocutor:

"Recal the interlocutor of the SheriffSubstitute of 29th April 1875, and the interterlocutor of the Sheriff of 7th July 1875, in so far as relate to the finding that, as regards the conclusion for poor-rates, the Sheriff's duties are only ministerial, and that the defender's pleas as to the assessments being imposed on too large a valuation cannot therefore be entertained in the Sheriffcourt: Find that, as regards the registration assessments, the findings of the Sheriff-Substitute and Sheriff are not objected to, but, on the contrary, are mutually acquiesced in: Recal in hoc statu the decerniture for the sum of £555, 188. 34d. sterling of poor-rates, and also the finding as to expenses: Reserve all other questions hinc inde between the parties, and continue the cause in the roll; and reserve also all questions of expenses in the Sheriff-court and this Court."

Counsel for Respondents (Pursuers)—Asher— Mackintosh-Maclachlan. Agents-Maclachlan

& Rodger, W.S.

Counsel for Appellants (Defenders)-Dean of Faculty (Watson) - Pearson. Agent James Hope jun., W.S.

Saturday, February 5.

FIRST DIVISION. [Sheriff of Lanarkshire. CAMERON V M'LEAN.

Paraphernalia.

Circumstances in which a wardrobe was held to be inter paraphernalia.

Mr and Mrs Cameron, three months after their marriage, ordered a wardrobe, which was delivered in three months. For the first three months the clothes of both the spouses were kept in it, but on the birth of the first child the husband's clothes were removed to another place, and ever afterwards the wardrobe was used only for the clothes of the wife and the infant. The wife had no other receptacle for her clothes. Four years after the marriage the husband became bankrupt, and his furniture was taken possession of by the trustee. The wife brought a petition for the restitution of the wardrobe as being inter paraphernalia.

The Sheriff-Substitute and Sheriff held that in the above circumstances it was not so, and refused the prayer of the petition.

The petitioner appealed to the Court of Session.

Appellant's authorities-Dicks, M. 5822; Pitcairn, M. 5825.

Respondent's authorities-Erskine, i. 6-15; Hewatt, Hume's Decisions, 210.

At advising

v. Maclean

, 1876

LORD DEAS-It was quite right in the trustee to retain this article and not include it in the general sale. The question is whether this wardrobe is paraphernal or not. There has been no case of the sort for a considerable period. They were more common in old times, for the ladies of those days were very jealous of certain rights of this class. But the law on this subject was perfectly well understood, and I take it to be thisFirst, That those articles are in their nature paraphernal which are adapted for the use and enjoyment of the female spouse as distinguished from promiscuous use. Second, That articles of promiscuous use may be made paraphernal by being gifted to the wife before or on the day of the marriage, either by the husband or by friends, and either by express or implied gift, if they are not out of keeping with the rank of the recipient. It is with the first branch only that we have to do here. It is admitted that the wife's clothes are adapted for her own, and not for promiscuous use. It seems naturally to follow that she must have some place to put them in. If this wardrobe had been used by her alone from the beginning there could not have been the slightest doubt. The only room for doubt arises from the fact that it was used by both for the first three months. But it does not appear that at first the husband had any place to put his clothes in, and I do not think that this partial use by him for the first three months is sufficient to alter the legal character of the article. It is not suggested that it is inconsistent with the rank of the spouses. The case reported by Hume is quite different. There there was a quantity of furniture, of which the chest of drawers was an article. I am therefore for recalling the interlocutor of the Sheriffs, and grant ing the prayer of the petition.

LORD ARDMILLAN-I concur. I do not think that the occasional use by the husband here could destroy the paraphernal character of the article.

LORD MURE concurred.

The LORD PRESIDENT was absent.

The Court granted the prayer of the petition. Counsel for Petitioner (Appellant)-R. V. Campbell. Agents-T. & W. A. M'Laren, W.S. Counsel for Respondent - Lang. AgentsCampbell & Smith, S.S. C.

Saturday, February 5.

SECOND DIVISION. [Lord Young. M'GILL V. BELL AND OTHERS. Process-Poor's Roll.

Circumstances in which the Court admitted to the benefit of the poor's roll a pursuer who was earning £1 a-week, and who had only one child residing in family with him, who was earning 6s. a-week.

This was an action at the instance of Mrs M'Gill, with consent of her husband, against Mrs Bell, widow of John Bell, writer in Dundee, and others, trustees under Mr Bell's settlement, for reduction of a disposition by Mrs M'Gill and others in 1854 of certain house property to which Mrs M'Gill had an eventual right of fee, on the ground that the consideration for which the disposition had been granted was inadequate, that the transaction had been carried through when she was in a state of mental weakness and in ignorance of her true rights, and that the signature of her name appearing upon the deed was a forgery.

When the action was in the Procedure Roll before the Lord Ordinary the pursuers applied for admission to the benefit of the poor's roll, and the usual remit was made to the minister and kirk-session, who reported that Mrs M'Gill was fifty-two years of age and her husband fifty, that they had no property, and were entirely dependent upon the earnings of M'Gill, who was an engineer, making on the average £1 a-week, that they had two daughters, one of whom was married, and the other, who was thirteen years old, lived in family with her father and mother, and earned 6s. a-week as a mill-worker.

Upon this report the pursuers moved the Court to remit the cause to the reporters in probabilis causa litigandi, and the motion was opposed upon the ground that the poverty of the pursuers was not such as to entitle them to sue in forma pauperis. The Court, before answer upon this question, remitted to the reporters, who decided that there was a probabilis causa. The pursuers

then asked for admission to the poor's roll, and this motion was opposed upon the same ground as the former motion.

The defender argued-There was no precedent for admitting to the benefit of the poor's roll parties in such good circumstances as the pur

suers.

The pursuers were not called on.

At advising-

LORD JUSTICE-CLERK-No doubt there have been conflicting decisions on this point, but these cases are always questions of circumstances, and for the consideration and discretion of the Court.

We have here a distinct allegation that this deed was forged, and that the value of the property in question is £2000. We sent the case to the reporters on probabilis causa, and they have reported that the pursuer has a probabilis causa. Without laying down any general rule, and expressly upon the ground of the gravity of the averments, I am for admitting this pursuer to the benefit of the poor's roll.

LOED NEAVES-I am of the same opinion. The result of not admitting the pursuer to the poor's roll would apparently be that there would be no inquiry into this matter at all. The pursuer of course must be held to have a probabilis causa. I do not think that 25s. a-week is enough to enable a pursuer to bear the expense of such a litigation as this is likely to be.

LORD ORMIDALE-I am unable, having regard to the precedents, to hold that every individual who has an income of 25s. a-week is entitled to

the benefit of the poor's roll. But, in the special circumstances of this case, I do not dissent from your Lordships. A serious charge of forgery will, I understand, fall to be investigated, and yet having this in view the reporters have found that the pursuer has a probabilis causa. That gives a character to the present case which distinguishes it from those which usually occur.

LORD GIFFORD-I agree upon the special ground of the nature of the litigation. I think that this is an element which may often be very material, and which must be kept in view as well as the amount of wages or income which the applicant enjoys.

SECOND DIVISION.

[Sheriff of Aberdeen. GORDON V. M'KERRON AND OTHERS, AND M'KERRON AND OTHERS v. GORDON. Road-Possessory Judgment-Proof of Possession.

Counter actions of interdict were brought in the Sheriff-court by a landed proprietor and several members of the public, relating to an alleged public road through the estate of the former. It was proved that such a road had formerly existed, but that in 1815 it was shut up by order of the road trustees, acting under a local statute, some doubt however existing as to the formality of the trustees' proceedings. For at least seven years prior to the raising of these actions the road had been used by the public by climbing over or breaking down fences, and going over cultivated ground, and had also been used by the proprietor by planting, cultivating, and enclosing-Held, upon appeal (dissenting Lord Gifford), that before obtaining a possessory judgment the character of the possession founded upon must be ascertained, the inquiry for this purpose not being limited to the seven years prior to the institution of the action, and that, as in this case there was prima facie evidence that the road in question had been shut up and the subsequent possession by the public unlawful, the parties claiming it were not entitled to a possessory judgment.

Opinion per Lord Gifford · That the only question before the Court related to the state of possession of the road during the seven years preceding the raising of the actions, and that to go back beyond that period for the purpose of ascertaining whether there actually existed a permanent right or not would be to obliterate the dis

tinction between a possessory question and a question of permanent heritable right. In June 1872 Mr Alexander Morison Gordon of Newton, in the county of Aberdeen, presented a petition to the Sheriff of that county, in which he set forth that John M'Kerron, mason, residing in Insch, had upon several occasions trespassed upon the farms of Ledikin and Bridge of Shevock, and in the wood of Ledikin, the property of the petitioner. The petition concluded with the usual prayer for interdict. At the same time Mr Gordon presented a similar petition against Robert Slorach, farm servant, and William Fraser, mason..

In December of the same year, and while these actions were still before the Sheriff, a third petition for interdict was brought at the instance of M'Kerron against Mr Gordon, as proprietor, and also against the tenants of the farms of Bridge of Shevock and Ledikin. The petitioner alleged that a public road or pathway, which he as one of the public was entitled to use, ran through these farms, and that fences had been put across it by the respondents. The petition prayed for interdict against these encroachments upon this public road, and for the removal of the fences. three actions were conjoined upon 27th June 1873.

The

Mr Gordon, while not denying that at one time a road such as was claimed by the respondents had passed through his lands, maintained that it had been legally shut up in the year 1815 by the road trustees, acting under a county road statute (39 and 40 Geo. IV. c. 32), when another road was substituted for it. He further pleaded that even although it was not legally shut up at that time, the public had lost all right to pass that way a non utendo for forty years and upwards.

It was maintained by Mr M'Kerron and the respondents in the petitions at Gordon's instance, that as the road in question had been used as a public road for at least seven years prior to the proceedings taken against them by Mr Gordon, they were entitled to the benefit of a possessory judgment.' They denied that the road had ever been legally shut up, alleging that a minute of the road trustees founded upon by Mr Gordon was vitiated and unauthenticated, and also that the trustees had failed to comply with the provisions of the statute as to notice of their intention to close the road to the public.

A proof was taken, and from the evidence led it appeared that various members of the public had been in the habit of going upon the road, but that they had been challenged and obstacles placed in their way by the proprietor.

The Sheriff-Substitute (DOVE WILSON), on 31st August 1875, issued an interlocutor, in which he found that proceedings of the road trustees were rregular and defective, and that the road in question had remained open as a public footpath, and he accordingly granted the interdict sought by Mr M Kerron and others.

Against this interlocutor Mr Gordon reclaimed. On 26th October 1875 the Sheriff pronounced the following judgment

"Edinburgh, 26th October 1875. The Sheriff having heard parties on the petitioners' appeal against the interlocutor of 31st August last, and having also considered the record, proof, and whole process, recals the said interlocutor: Finds

it proved that in 1815 the road in question was shut up by the road trustees in virtue of the powers contained in the Statute 39 and 40 Geo. III. c. 32; that it was then enclosed within his grounds by the petitioner, and ceased to be used for carts and horses; that although there is evidence of its continued use as a public footpath, no such possession has been established on the part of the public subsequent to its suppression as would be sufficient to constitute a public rightof-way; therefore, in the petition at the instance of Mr Gordon, repels the defences, grants interdict in terms of the prayer of the petition; dismisses the counter-petition; finds the petitioner Mr Gordon entitled to expenses; allows an account to be given in, and remits the same when lodged to the Auditor for taxation and report, and decerns.

"Note. The proceedings in this case commenced with a petition at the instance of Mr Gordon of Newton against Mr John M'Kerron, mason in Insch, to have him interdicted from trespassing on the lands of Ledikin and others, the property of the petitioner. The defence stated to the action is a right of public way by a line of road which used to run from Insch to Old Rayne; and at the same time a cross petition was lodged at the instance of Mr M'Kerron, craving an order on Mr Gordon for the removal of the fences and other obstructions tending to interfere with the public right.

It is hardly necessary to observe that in a case of this kind the jurisdiction of the Sheriff is of a somewhat limited character. A judgment by the Sheriff (says Lord Deas) in the case of a servitude road may settle the matter of right just as would be done in a declarator, but in the case of a public road the Sheriff can settle only the matter of possession till a declarator is brought in this Court; and, consequently, the proof allowed is different in the two cases, being forty, years' possession in the one case and seven years' possession in the other, facts beyond the seven years being no further regarded than as they may indicate the character of the possession (as by tolerance or otherwise) within the possessory period-Thomson v. Murdoch, 21st May 1862, 24 D. 975.' To ascertain the character of the possession which has been proved on the part of the public in this case, it thus becomes necessary to go back to the year 1815, when the road came to be dealt with by the District Road Trustees, under the Act 39 and 40 Geo. III. c. 32.

"Under this Act a new road, called the Gardensmill turnpike, was opened in the year 1803. It is part of the Great North Road from Aberdeen to Huntly and Inverness. The improved line of communication superseded sundry byroads, which were accordingly shut up by the road trustees under the powers contained in section 71 of the statute.

"By this section it is made lawful for the trustees to shut up and suppress roads of every description which may appear useless or of little importance to the public. The statute does not prescribe the manner in which this power is to be exercised. It assumes that it would be the accessory result in many instances of the new and improved means of communication which the statute authorised, and so it leaves the matter in the hands of the trustees without prescribing the formalities to be observed. The