99. By the act 1617, c. 10,1 poor children may be delivered by the magistrates of burghs or the kirk sessions of the parishes where they are found, to any of his Majesty's subjects, who shall be entitled to their services, and to any gains they may make by their labour, until they attain the age of 30 years. To authorize this temporary slavery, the consent of the children themselves is necessary, if they be above 14 years old; and if they be under that age, that of their parents, or where these are dead or unknown, of the magistrates and kirk sessions. Mr Erskine2 quotes this act as being still in observance; but it certainly is not now resorted to in practice. Whether, in the present day, it would be held to warrant the enforcing of the compulsory service of poor children for the full period of thirty years, it may certainly be considered as in sufficient observance to the effect of authorizing the heritors and kirk sessions to employ the child at some labour, or bind him to some trade for a reasonable period of apprenticeship, and to withhold parochial relief, in the event of the parents refusing to consent to the child being so disposed of.

6

100. When the parish refused to grant relief, as well as when the liability to support a pauper was disputed by the parishes, it was the practice for a long period to resort indiscriminately to the Justices of Peace—the Sheriff1—the Commissaries-or the Supreme Court; and these Courts were in use, not only to determine which parish was liable, and to ordain the heritors and kirk sessions to afford relief, but also to fix the quantum of aliment to be given. It may` now be considered as finally settled, that no inferior judge

1 Repeated by 1672, c. 18, and Proclamation, 11th August, 1692. 2 1 Erk. 7, 61. 3 Dunse, June 5, 1745, (M. 10553.)

4 Crailing, March 7, 1767, (M. 10573.) Hutton, December 6, 1670, (M. 10574,) &c.

5 Inveresk, June 29, 1737, (M. 10552.)

6 Inveresk, March 3, 1757, (M. 10571.)

has any power to determine on a claim of relief in the first instance, or to review the decision of the heritors and kirk session on such questions. (See infra, 207, et seq.)

1

The Court of Session, however, as the supreme civil court, has the power of reviewing the determination of the heritors and kirk sessions on these questions. But the judges will not interfere with their decision as to the amount of the provision allowed, unless it be elusory, or totally inadequate. (See infra, 218, et seq.)

101. Advocation is the proper form for the purpose of bringing a judgment of the kirk session before the Court of Session.2

A summary process of aliment is an inept mode of compelling the parish to grant relief; an ordinary action, at instance of the pauper, would be equally so, the heritors and kirk session being a court or board, and in a totally different situation from a private party liable in aliment.

102. Both the heritors and the kirk session must be made parties to any process against them. It is not sufficient to call the heritors or the kirk session alone; but the board, as one body, may sue and be sued as a corporate society.⭑

103. The previous observations apply equally to the case of judgments of magistrates in royal burghs, as to those of heritors and kirk sessions in landward parishes, both possessing the same authority within their respective jurisdictions in reference to the management of the poor.5

1 Dunse, June 5, 1745, (M. 10553.) Paton, Nov. 20, 1772, (M. 10582.) Coldingham, July 28, 1779, (M. 10582.) Abbey Parish of Paisley, Nov. 29, 1821, 1 Sess. Rep. 212. Higgins, July 9, 1824. 3 Sess. Rep. 183, Note.

3 Ibid.

Note.

2 Higgins, July 9, 1824, 3 Sess. Rep. 183. 4 Dalry, Nov. 17, 1791, (M. 14557.) This case had reference to a mortified fund, of which the heritors and kirk session had assumed the management, on the failure of the nominated trustees. The same principle, however, would hold in reference to the ordinary parochial funds.

5 1579, c. 74.-1617, c. 10.-Proclamation, 29th August, 1693.

104. Where a pauper, during a discussion of his claim for relief, has been supported by a parish, or by individuals not legally bound to maintain him, they are entitled to be reimbursed, by the parish ultimately found liable, of the sums advanced from the date of the application for relief, although that application may have been made to the wrong parish.1

Advances by relations prior to any application for relief, are held to have been made ex pietate, and cannot be claimed from the parish of the pauper's settlement; but it has not been decided, whether a similar rule would apply to the case of advances by strangers. Parishes and individuals having maintained paupers whom they were not bound in law to maintain, are entitled to pursue the parish of their settlement, to the further effect of having it declared liable in their future support.

3

An action was in one case sustained by a parish in which a pauper was resident, against that of his legal settlement, to have the latter declared liable to support him, although no aliment had been advanced by the parish pursuing the action, and no claim made on it. But, in a later case, the Court found, that a parish, against which no claim had been made for the support of a bastard child born in the parish, had no title to pursue an action against the father, concluding to have him found liable in the maintenance of his child; and, on the same principle, it must now be held, that a parish in such circumstances has no title to pursue an action against the parish of the settlement of a poor person whom they merely suspect to be likely to become an object of parochial relief.

1 Rescobie, Nov. 28, 1801, (M. 10589.) Howie, January 25, 1800, (M. Ap. Poor, 1.)

105. In a case where, on grounds of public police, the Procurator-fiscal of the Sheriff Court had taken up and supported an idiot in a lunatic asylum, he was found entitled to be reimbursed by the parish where the idiot was apprehended, though it was not that of his settlement, and although no previous application had been made.1 It was declared, however, that the parish might place the idiot where he should be supported at least expense, provided the Procurator-fiscal was satisfied of the security of the custody.

1 Scot, Nov. 13, 1818, (F. C.)

CHAPTER V.

OF THE FUNDS FOR SUPPLYING RELIEF.

106. THE funds out of which the poor are to be supported, may be divided into two classes:-1. Those arising from voluntary contributions, mortifications, mortcloth dues, and such like sources,-and, 2. Those levied by as

sessment.

SECTION 1.

Of voluntary Contributions, Mortifications, &c.

107. In the greater number of parishes in Scotland, the principal fund for the support of the poor consists solely in the contributions made at parish churches.1

The collections received at dissenting meeting-houses do not form part of the poor's funds, but are at the sole disposal of the congregation by whom they are supplied.2

It would rather seem, however, that contributions collected at chapels of ease ought to be thrown into the general parochial fund, although, perhaps, the heritors and kirk session may leave the distribution of such sums to the minister and elders of the chapel.

If such collections are to be held in law as forming part

1 These are generally collected in a plate placed at the door of the church; the more ancient and more effectual method of causing the elders to collect the alms of the people in 'ladles,' as they are termed, (boxes with long handles,) which are presented to each person in th church, is still maintained in some parishes.

2 Hill, June 19, 1739, (M. 8011.)