Scottish Court of Session Decisions

Lord President—The pursuer of this action is the inspector of poor of the parish of Hoddam, and he has called two defenders, the inspectors of poor of the parishes of Middlebie and Annan. The object of the action is to obtain relief for payments made for a pauper named Deans, and the ground of action was, as against Middlebie, that the pauper was born there; the same ground being stated alternatively against Annan. The pursuer did not aver that the pauper had a residential settlement in either of these parishes. The parish of Middlebie alleged that the pauper had a residential settlement in Hoddam, while the parish of Annan contents itself with a simple denial. The case came in that shape before the Sheriff-Substitute, and he pronounced the interlocutor to which the Sheriff adhered, and which is now before us. In this state of matters, the obvious course is to find out whether the pauper had or had not a residential settlement in Hoddam, and the way to do so was to allow Middlebie a proof and to Hoddam a conjunct probation. The Sheriff-Substitute, however, did not take that very obvious course. His interlocutor is as follows:—

“ Dumfries, 14 th October 1873.—Having considered the closed record, with the productions and whole process, Finds that the pursuer avers that the pauper was born in the parish of Middlebie, or, if not, in the parish of Annan; that the defender Middlebie avers that at the time when the pauper became chargeable he had a residential settlement in the parish of Hoddam; that the pursuer, although not admitting it, does not deny this statement; that by letter No. 10/2 of process, the pursuer, through his agent, admitted to the defender Middlebie that ‘Deans, there is no doubt, had such a settlement, but he lost it by absence in Hoddam for more than four years:’ Finds, in these circumstances, (1) that the pursuer having admitted that the pauper once had a residential settlement in his parish, the burden of proving that it was subsequently lost lies on him; and (2) that this matter falls to be decided before the question of the pauper's birth settlement requires to be entered upon: Therefore allows to the pursuer a proof as to the pauper having lost his residential settlement in the parish of Hoddam, and also of his averments as to the place of the pauper's birth, and to both defenders a conjunct probation; and appoints the pursuer to move for a diet of proof within seven days.

Note.—The general rule is that the burden of proving a residential settlement elsewhere would lie on the birth parish, or the parish averred to be such, averring the acquisition of such a settlement, but the Sheriff-Substitute thinks that there are sufficient grounds in this case for shifting the burden of proof on to the pursuer.

His letter clearly admits that the pauper once had a settlement in Hoddam, although a less certain sound is given out in the record. The truth of the admission is not repudiated distinctly in the record, and when the defender Middlebie (probably relying on the admission) avers the settlement in Hoddam, it is not denied that such was once acquired.

To save the possible necessity for a second proof after a judgment on the question of residential settlement, the Sheriff-Substitute has allowed proof on both parts of the case together, but it will be in the pursuer's discretion whether or not he will require proof on the question of birth.”

Now this seems to me a very strange course to follow. In the first place, as regards the averments on record, it is not at all improper on the part of Hoddam to meet the statement as to residence simply by non-admission. In a question not within the inspector's own personal knowledge he is quite entitled to say “not admitted.” But the strangest part of all is the Sheriff-Substitute's importing into his interlocutor an admission said to be contained in a letter. An admission in a letter may be explained away, or this letter may not have been written by the instructions of the pursuer. In short, nothing can be more irregular than that a judge should take a letter in process as evidence before it is proved. I am not sure that Hoddam would have to prove the loss of a residential settlement by the pauper even if they admitted it originally, but anyhow, the first thing to be proved is that such a settlement was acquired. Nothing can put this case into shape but recalling the Sheriff-Substitute's interlocutor and all that followed on it. No doubt that may cause a good deal of difficulty, but the parties themselves may obviate that to a great extent by allowing the proof, so far as led, to form part of the proof in the action; it certainly is not a concluded proof. I hope that the counsel may be able to make some such arrangement.