Scottish Court of Session Decisions

William Young, inspector of poor of the parish of Perth, wrote upon 24th November 1865 to Alexander Gow, inspector of poor of the parish of Caputh, stating that Agnes Henderson or Cameron, residing at Guard Vennel, Perth, had become chargeable to Perth parish, “which claims relief from your parish as the parish of settlement.” In a subsequent letter, dated 28th November 1866, the grounds of the claim were furnished by Perth to Caputh. It was further stated—“Her husband, Alexander Cameron, a wright, was born in Dunkeld, in your parish, deserted her 28 years ago, and has not since been heard of. His father, John Cameron, was a wright in Dunkeld, and well known, but long since dead. James Cameron, a wright there, I suppose, is a brother, and I refer you to him, as I believe he is able to give you the particulars. His workshop is near the police-station. I claim upon you in respect of husband's birth. Your admission and instruction will oblige.” On 5th December some further particulars were furnished by Perth to Caputh, and on 20th December 1866 the inspector of Caputh wrote to the inspector of Perth stating the result of his inquiries, and admitting that if the information he had received was correct his parish was liable, but that he would write again should he find anything to the contrary. The claim was afterwards brought before the halfyearly meeting of the Parochial Board of Caputh, held on 8th April 1867, when the meeting instructed the inspector to admit liability. The inspector of Caputh accordingly admitted liability, and repaid the pursuer, the inspector of Perth, his advances up to 11th April 1868. He then came to think that he had made a mistake in giving the admission, and he withdrew or endeavoured to withdraw it, and repudiated further liability. He did so on the ground that the pauper had been deserted by her husband in 1838, since which time nothing had been heard of him, and the pauper had supported herself in Perth, thereby acquiring an industrial settlement there. The withdrawal was not accepted by the inspector of Perth, and eventually this action was raised in the Sheriff Court of Perthshire on 6th October 1875 against Caputh for repayment of advances made, and for relief in the future.

The defender, inter alia, pleaded—“(3) The original admission of liability having been made in excusable error as regards the law applicable to the circumstances (then undecided), defender was justified in subsequently withdrawing the admission and repudiating liability. (4) Defender having repudiated liability in April 1868, the claim of pursuer for aliment prior to the raising of the present action is extinguished by mora.”

The Sheriff-Substitute ( Barclay), after a proof as to the pauper being a proper object of relief, pronounced an interlocutor containing certain findings of fact, and, applying the law to the facts as thus found, finds—“ Firstly, That the pursuer, notwithstanding the admission of liability by Caputh in 1866, having homologated the repudiation of liability in 1868 by the defender, and of the great mora following thereon, cannot recover for the advances since made to the pauper prior to the date of the action: Secondly and Separately, With regard to the conclusion for relief of future aliment, the pauper having resided in the parish of Perth since the desertion of her husband for a period much longer than necessary for acquiring a residential settlement therein, has acquired such, and cannot, in the want of proof of her husband being alive during that period, be sent to the parish of her husband's birth: Therefore assoilzies the defender from the conclusions of the action, finds him entitled to costs, remits the account when lodged to the Auditor to tax, and decerns.” In the note it was stated—“Caputh does not sue for repetition of advances made whilst liability was admitted, but Perth sues for past and future aliment as if there had been no repudiation. The pursuer homologated the recal, and for six years made no formal claim of relief. In this way the ratepayers, who were bound to supply the fund every year, are relieved from their proper burden, which is thrown upon their successors. This renders the plea of mora much more formidable

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than when it arises between private parties—See Hay v. Jack, February 15, 1853, 25 Jurist 234; and Eastwood and Paisley v. Lismore and Appin, January 22, 1864, 36 Jurist 233; see also Barony v. Dailly (second branch), February 9, 1866, 38 Jurist 198; Beattie v. Greig, July 9, 1875, Session Cases 923. The mora in some of these cases was much shorter than in the present case, and there too, as in this case, liability was first admitted and subsequently repudiated.”

The pursuer appealed to the Sheriff ( Adam), who pronounced the following interlocutor:— “ Edinburgh, 19 th June 1876.—The Sheriff having heard parties' procurators on the pursuer's appeal, and considered the same and whole process—Sustains the appeal, and recals the interlocutor appealed from: Finds it proved that on the 20th December 1866 the inspector of the parish of Caputh admitted liability for the support of the pauper by his letter of that date: Finds that no facts or circumstances have been proved which are relevant to relieve the defender from the effect of that admission: Therefore finds that the parish of Caputh was effectually bound by the said admission, and that the same is still effectual: Therefore decerns against the defender in terms of the conclusions of the summons; finds the pursuer entitled to expenses; allows an account thereof to be lodged; and remits the same to the Auditor to tax and report, and decerns.

“ Note.— … The Sheriff is of opinion that in this case a deliberate admission of liability was after investigation made by Caputh, which was afterwards duly acted on. He thinks therefore that the case falls within the principle settled in Beattie v. Arbuckle, January 15th, 1875, 2 Rettie 330, and that this admission of liability cannot be retracted by Caputh on the ground averred.

The Sheriff thinks that this is conclusive of the case against Caputh. It does not appear to him that there is any evidence in process that Perth ever acquiesced in the withdrawal by Caputh of its admission of liability, and abandoned its claim against that parish. On the contrary, Perth from the first refused to accept of such withdrawal, and the evidence in process shows that although Perth took no active steps to enforce its claims of relief, apparently in the hope that Caputh would pay without the necessity of litigation, it made repeated demands for payment. Caputh was perfectly well aware that Perth had not abandoned its claims, but was insisting on them, and in these circumstances it appears to the Sheriff that there is no room either for the plea of mora or prescription.

The Sheriff thinks that this is a hard case for Caputh, as he has no doubt that but for the admission made in 1866 Caputh would not have been liable— Greig v. Simson, May 16,1876.”

The defender appealed, and argued—It was not a restitution of money already paid that he asked. He desired to be relieved from future obligations.

A discharge granted under an error in law was not good. A fortiori, an admission entailing future obligations was not binding. Considerations of policy were against the view that an admission once given was to be held as binding, and against the decision of the Second Division in Beattie v. Arbuckle, January 15, 1875, 2 R. 330. Such a decision would tend to prevent admissions being given. There had been delay in bringing this action sufficient to justify its being excluded on the ground of mora.

Authorities— Dickson v. Halbert, February 17, 1854, 16 D. 586; Purdon v. Rowat's Trustees, December 19, 1856, 19 D. 206; Wilson v. M'Lelland, December 7, 1830, 4 W. and S. 398; Beattie v. Arbuckle, January 15, 1875, 2 R. 330; Crawford v. Beattie, May 12, 1860, 22 D. 1064; Cooper v. Phibbs, May 9, 1867, 2 L.R., Eng. Apps. 149 (Lord Westbury's opinion, p. 170); Macdonald v. Taylor and Craig, November 26, 1863, 9 Poor Law Mag. 348; Parish of Rathven v. Parish of Elgin, June 24, 1875, 2 L.R., Scotch Apps. 538; Hay v. Jack, February 15, 1853, 15 D. 388.

At advising—