Scottish Court of Session Decisions

In this action John Forbes Walker, Inspector of the Poor of the Parish of Stow, was pursuer, and Thomas Russell, Inspector of the Poor of the Parish of Clackmannan, was defender. The pursuer sought for declarator that the pauper Margaret or Phoebe Ann Miller was chargeable on the parish of Clackmannan, and for decree of payment of certain sums advanced or incurred by the pursuer on the pauper's behalf. The pauper is the daughter of John Miller, who was born in the parish of Clackmannan in 1793. Miller left his birthplace when about 20 years of age, and, after about 15 years' hawking in various parts of England, married Phoebe Ann Kelly, and of that marriage the pauper was bora. Some years after, Miller deserted his wife, and has never since been heard of. The pauper and her mother, both of whom were of somewhat weak intellect, travelled about as hawkers till the latter's death in July 1866. On 16th May 1867 the pauper, who had been travelling about the country, was taken ill at a farm in the parish of Stow, and delivered of a child. The pursuer, on application, gave the pauper relief, but learning from the parochial doctor that he thought she was of unsound mind, and finding the doctor and another (who was also consulted some time after) were of the same opinion, the pauper was, on 4th June, removed to Morningside Asylum by warrant of the Sheriff of Midlothian. The child died a month after its birth. On 18th May 1867, the pursuer sent the defender the usual statutory notice, and on 12th June claimed relief from him. The pursuer maintained that the parish of Clackmannan is liable in support of the pauper, as being the parish of her father's birth, and as she had been too weak of mind to gain a settlement for herself. The defender rested his defence on the ground that the pauper was not insane, and had been forisfamiliated.

The acting Lord Ordinary ( Neaves) assoilzied the defender in the following interlocutor:—The Lord Ordinary having heard counsel for the parties, and considered the closed record and proof— Finds that the pauper in question, now chargeable on the parish of Stow, as the relieving parish, is

Page: 566↓

the daughter of John Miller, who was born in the parish of Clackmannan, in December 1793: Finds that the said John Miller left Clackmannan and Scotland when under or about twenty years of age, and went to England, where he became a hawker or travelling merchant, and was married at Cheltenham, in the year 1828, to the pauper's mother, Phœbe Ann Kelly, who gave birth to the pauper in England in September 1829: Finds that a few years afterwards the said John Miller deserted his wife, and that no authentic account of him has since been received, nor any sufficient evidence now adduced with regard to him: Finds that, after being deserted by her husband, the pauper's said mother, with the pauper, and at first also with a son who was born of the said marriage, travelled about the country as hawkers, and latterly the pauper's mother and herself followed the same course of life in England and in Scotland, until her mother died in the month of July in the year 1866: Finds that the pauper, though naturally of weak intellect, was not a lunatic nor a natural idiot, and was able to some extent to contribute to her own livelihood by knitting and selling small wares along with her mother, and that she had received some instruction at school, and could read, and take care of any money she had occasion to receive: Finds that the pauper and her mother were never reduced to beggary, nor became paupers in any way, and that they are not shown to have received any parochial relief or assistance, although it appears that, after the death of the pauper's mother, some claim had been made on the mother's account on the parish of Clackmannan, and that a sum of £2, 3s. 9d. was, in September 1866, paid by the inspector of that parish in reference thereto, but upon what footing does not appear: Finds that, after her mother's death, the pauper herself went about the country without begging and without becoming an object of parochial relief, until the time when she was delivered of a child in May 1867, at a place within the parish of Stow: Finds that at this time she became seriously ill, and that her mind was affected, and that thereafter she was admitted into Morningside Asylum, and there re-mains as an insane person: Finds that the pauper, having thus become chargeable on the parish of Stow, the pursuer, on 18th May and 12th June 1867, intimated to the parish of Clackmannan, in terms of the Statute, that such was the case, and that he claimed to be relieved by that parish of her support, as the parish of her father's birth: But finds that, in the circumstances of the case, that claim of relief now sought to be enforced is not well founded, and that the parish of Clackmannan is not bound to support the pauper: Therefore to this effect sustains the defences, and assoilzies the defender from the conclusions of the action, and decerns: Finds the pursuer liable in expenses; allows an account thereof to be given in, and, when lodged, remits the same to the Auditor to tax and to report.

“ Note.—The parish of Clackmannan can only be subjected in this action if it is the parish of the pauper's settlement. But it is thought that the facts of the case do not support that contention. In the absence of a residential settlement, the parish generally liable is the parish of the pauper's own birth. There are undoubtedly exceptions to that rule, and the most conspicuous of these is the case of children in pupillarity, who may have either lost their father or have been deserted by him. His settlement is their settlement. They never have had a status of their own, and the settlement of their own birth is not, in the first instance at least, at all regarded.

The pursuer here maintains that the settlement of the pauper is the birth settlement of her father, because, on the one hand, it does not appear that the father ever acquired any other settlement, and because, on the other hand, “the pauper has from childhood been of unsound mind.” The Lord Ordinary is disposed to think that, if the fact here assumed were true, the conclusion deduced from it would be well founded. It may not be quite clear in this case that the father ever acquired another settlement, but, waiving that difficulty, the question arises as to the pauper's state of mind. One who is truly a lunatic or a natural idiot may, it is thought, be considered incapable of acquiring any settlement of his own, and may be considered a perpetual pupil or infant, whose settlement remains through life the settlement which he derived from his father. But then it is thought that, in order to have the effect of thus annihilating the pauper's personality, the lunacy or idiocy must be complete and unequivocal. Mere weakness of understanding will not do. There is an infinite variety in the shades of such weakness that would make it extremely dangerous to introduce any laxity in this respect. The Lord Ordinary has been unable to hold that the defect in the pauper's mind in this case was of such a nature as to put her in the position of a mere pupil. She was not a lunatic, and he thinks it cannot be said that she was an idiot. She had been sent to school, and had received such instruction as to be able to read respectably or even well. She could count to a certain extent, and knew enough to enable her to manage the little money matters that she had occasion to deal with. She could knit articles that were saleable, and she could sell the little wares that her mother and she carried about. She had no illusions, and it is doubtful if she had any delusions, though she may have imbibed naturally enough some of her mother's foolish imaginations or pretensions as to being a great personage. Nothing definite, in short, is proved about her, except the general idea that she was deficient, and upon that subject the evidence is conflicting. It is not wonderful that with a weak, and probably an excitable mind, the melancholy position in which she was placed by the unprincipled conduct of some unknown man, in making her the mother of a child, would, for a time at least if not permanently, disorder her understanding to such a degree as to account for the state to which she was then reduced, and in which she has since been. The doctor who saw her at the time of the child's birth might have thrown more light on this matter, but he was not examined.

In these circumstances, the Lord Ordinary cannot see that she was incapable of acquiring even a residential settlement if she had ever settled down in a fixed abode, and he thinks that it would be contrary to all correct principle to hold that, whatever her intermediate history may have been as to residence, she was destined to retain through life the paternal settlement which she derived from her father forty years ago.

It has been suggested that, from her living with her mother all along, she must be held to have had at least her mother's settlement, and that her mother, whether as the wife or the widow of John Miller, had the settlement of her husband at Clackmannan. Even supposing that this was

Page: 567↓

the mother's settlement, there seems no good ground for holding that a grown-up daughter, if not otherwise incapable of any status, must take her mother's settlement because the two lived together, and helped each other to earn their livelihood. The daughter here may have done little in one way, but she was abler and stronger in another, and the two mutually contributed their best.

The payment made by Clackmannan after the mother's death seems not to be conclusive of anything. It is rather remarkable that, after that event, the pauper seems to have gone on by herself, for nearly twelve months, without having either begged or got relief. She probably lived upon some money which the mother seems to have had, and to which the son refers in his evidence, and which is also spoken to by the witness Hyslop.”

The pursuer reclaimed.

Orr Paterson for him.

Fraser and Balfour in answer.

At advising—