Scottish Court of Session Decisions

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Cite as: [1876] SLR 14_118, [1876] ScotLR 14_118

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SCOTTISH_SLR_Court_of_Session

Page: 118↓

Court of Session Inner House Second Division.

Wednesday, November 22.

[ Lord Rutherfurd Clark, Ordinary.

14 SLR 118

Lawson (Inspector of Annan)

v.

Gunn (Inspector of Cramond).

Subject_1Poor
Subject_2Settlement
Subject_3Lunatic.
Facts:

Held that a parish which had afforded relief to an adult pauper who had been imbecile from her birth was entitled to claim repayment from the birth parish of her father, who had died without acquiring a residential settlement.

Headnote:

This was an action raised by the Inspector of Poor of the parish of Annan against the Inspector of Poor of the parish of Cramond. The summons concluded for payment of £48, 7s. 2d., being the disbursements by the Parochial Board of Annan for the maintenance of Maria Farie, a pauper, during her confinement in the Southern Counties Lunatic Asylum, from 19th February 1874 to 16th February 1876, and thereafter for all the time that she should continue a lunatic and require parochial relief.

The circumstances of the case were as follows:

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—The pauper was born in 1853 in the parish of Selkirk, and ever since her birth had been an imbecile, and unable to do anything for her own support. Her father, Alexander Farie, was born in Cramond parish, was married at Dumfries, and after a residence of about five years at Annan died there on 19th December 1872. Farie acquired no residential settlement in Annan, as before going there he had applied for and obtained relief from Cramond Parochial Board, which relief was continued during his residence in Annan, and until his death. The pauper, after her father's death, lived with her mother in Annan till 19th February 1874, when she was removed to the said asylum. She was then twenty-one years of age. Due notice was given to the defender of her removal, and of his parish being held liable for her maintenance. The defender denied liability.

The pursuer pleaded—“(1) The parish of Cramond, as the parish of her father's birth, is liable for the pauper's support. (2) The parish of Cramond is bound to repay, as concluded for, the advances made by the parish of Annan on behalf of the pauper, and to relieve the parish of Annan of her future maintenance.”

The defender pleaded—“(1) The pauper having first become chargeable as a pauper at the age of twenty-one, and more than a year after her father's death, her parochial settlement is in the parish of her own birth, and not in that of her father's birth. (2) The pauper not having been born in Cramond, and not having any settlement in that parish, the defender should be assoilzied, with expenses.”

The Lord Ordinary pronounced, on 1st July 1876, the following interlocutor:—“Having considered the cause, decerns against the defender in terms of the conclusions of the libel: Finds the pursuer entitled to expenses.

“ Note.—The pauper when she became chargeable was twenty-one years of age. She was then in a state of extreme imbecility, and incapable of doing anything for her support. This has been her condition during all her life, for though it has not been proved that she is a congenital idiot, it is plain enough that her mental infirmity has existed from her earliest infancy.

Her father died in December 1872. At his death he had no residential settlement, and hence his settlement was in the parish of Cramond, where he was born.

“The pursuer maintains that the pauper's settlement is in Cramond, inasmuch as that was the settlement of her father at the time of his death. The defender admits that he would have been bound to support the pauper if at her father's death she had been in pupillarity. But he contends that, inasmuch as she was in majority at the time when she became chargeable, her settlement is in the parish of her own birth. His argument is, that in the absence of any residential settlement, original or derivative, every adult must have recourse to his own birth settlement; that the rule by which children retain their father's birth settlement was introduced in order to keep the family together, and can have no place as regards adult lunatics; and that though a lunatic may be looked upon as no more than a child when anything depends on choice, the law, by assigning every adult pauper to his own settlement, excludes all exercise of will, and therefore all analogy between a pupil and an adult lunatic.

“The Lord Ordinary has not been able to adopt the argument of the defender. He thinks that the reasoning on which the Court proceeded in the case of Craig, 8 Macph. 1172, applies equally to a pupil and a person in the position of this pauper. She has always remained in statu pupillari. She has never been sui juris, or in a condition to exercise any civil rights. On the contrary, she has been under a constant legal incapacity. The Lord Ordinary, therefore, is of opinion that the judgment of the Court in the case above mentioned rules the present. This appears to be in accordance with the view of the law taken by Lord Neaves as well as by the Court in Walker, 1 Macph. 893.”

The defender reclaimed.

Authorities cited— Craig v. Greig & M'Donald, July 18, 1863, 1 Macph. 1172; M'Crorie v. Cowan, March 7, 1862, 24 D. 723; Barbour v. Adamson, May 30, 1853, 1 Macq. App. 376 (and the Lord Chancellor there); Hopkins v. Ironside, Jan. 27, 1865, 3 Macph. 424; Walker v. Russell, June 24, 1870, 8 Macph. 893; Hay v. Paterson, July 29, 1857, 19 D. 332.

At advising—

Judgment:

Lord Justice-Clerk:—I see no reason to differ from the Lord Ordinary. The important consideration in such cases is to lay down and follow intelligible rules for the regulation of the liability of parishes. Now, it has been conceded that it has been conclusively settled that a pupil follows the settlement of his father even although the father be dead. It has been held in the cases of Hopkins and of Walker, to which we have been referred, that an imbecile child, although past the years of pupillarity, is still to be considered a pupil in such questions while the father is alive. I think it follows that the same rule is to be applied after the father's death, on the same analogy. Here the pauper is wholly incapable of earning her own subsistence, and has always been so. I am satisfied with the views the Lord Ordinary has expressed.

Lord Neaves—In such circumstances as the present there is no change in the position of the pupil on attaining puberty; that cannot be, as there is no will—no mental power whatever. The only difference between this case and those which have already been decided is that here the pauper's father is dead. I cannot see that this really makes any difference.

The authorities appear to me to be in entire accordance with this view—that where a person receiving parochial relief in this way is from the state of his mind in such a condition as to be utterly unable to better himself, the settlement is never changed, but remains as it was originally. The imbecile is unable to enter into any contract, or to do anything which may mark the legal distinction between puberty and pupillarity, and that being so the pupillarity must continue.

Lord Ormidale—I am of the same opinion. It is very desirable that in such cases decisions already pronounced should be adhered to, and I think that the authorities referred to have already decided the point in question as nearly as possible. There can of course be no doubt that in

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ordinary circumstances the pauper until puberty would have followed the birth settlement of her father, and the question comes to be, whether, if when she is after the age of puberty still an idiot, the birth settlement of her father continues to govern? All the authorities tend to show that the effects, or rather the disabilities, of pupillarity in the case of an idiot extend to beyond the age of twelve or fourteen, as the case may be. In Hopkins v. Ironside the Judges use the expression “perpetual pupillarity,” and I feel here bound to hold similarly that the pauper is still in pupillarity.

Lord Gifford—I concur, and it appears to me that the ground upon which the Lord Ordinary has based his judgment is entirely satisfactory.

In addition to that, however, I go upon this further, ground that the pauper must be held actually to have become chargeable during her father's lifetime, because it is admitted that the father became a pauper before his death, and died when in receipt of parochial relief. This, indeed, is just the case of a father with a helpless imbecile daughter getting parochial relief, and accordingly the parish of his birth cannot rid themselves of liability. I am therefore for adhering, on this as well as the ground taken by the Lord Ordinary

The Court adhered.

Counsel:

Counsel for Pursuer—Fraser— Burnet. Agent — J. Knox Crawford, S.S.C.

Counsel for Defender— Balfour—Young. Agents — W. & J. Burnes, W.S.
1876