Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Lanarkshire at Glasgow in an application for parochial relief made by Mrs Mary Paterson or Scott against Peter Beattie, Inspector of Poor of the Barony Parish of Glasgow, on behalf of the parochial board of that parish. Relief was refused on the ground that the applicant was a young and able-bodied woman, in good health, and having no dependents. In answer it was denied that the applicant was able-bodied, and stated that she was a woman of delicate constitution, and that she had been unable for five years to do any work beyond attending to her husband's house. It was further stated that in September last her husband was admitted as a pauper lunatic to Woodilee Asylum.

A proof was led in which the material facts brought out were as follows—The woman although not robust, was free from organic disease of any kind. Five or six years ago she had rheumatic fever, and was still at times afflicted with rheumatic pains. She had been in the poorhouse for four weeks, and when there had been able to engage in light work. She admitted that although unable to perform heavy she could undertake light work. She had no children, and was not impotent or maimed in any way.

The Sheriff-Substitute ( Spens) found that the applicant was an able-bodied married woman, that her husband was presently chargeable to the Barony Parish of Glasgow, and that as matter of law she was legally entitled to relief. He added the following note:—

“ Note.—It appears that the applicant some years ago suffered from rheumatic fever, but the medical evidence shows that there is nothing organically wrong with her. She is certainly not a strong or robust woman, and it appears in evidence that she was sometimes assisted by her neighbours in scrubbing a floor, &c., on the ground of being thought delicate by them, as a friendly turn; but as matter of poor-law I am of opinion that she must be regarded as an able-bodied woman….

But the applicant being held to be an able-bodied woman, the question arises, although she has nobody to support except herself since her husband is in point of fact chargeable as a pauper to the Barony Parish—is the parochial board entitled to deal with her as separable from her husband, and to refuse her relief? The point, so far as I am aware, is a novel one, and seems to me of considerable importance. The husband is in this case a lunatic, but the case was argued to me on the footing that whatever the description of infirmity which had rendered the husband liable to be supported by the parish, the wife, if without children and able-bodied, was not as matter of law entitled to relief from the parish. I will first discuss the general question thus raised, and thereafter advert to the question of whether the particular infirmity of lunacy raises any valid distinction.

(1) There is no doubt that the woman, if a widow, would not be legally entitled to relief; and I take it also that a deserted wife, able-bodied and without dependents, and whose husband was not chargeable to a parish, would also not be legally entitled to relief. The fact, however, of the applicant being the wife of a pauper presently chargeable to the Barony Parish seems to me to raise a wholly different question, the consideration of which must be viewed with reference to the effect of the marriage relationship, and the decisions in connection with poor-law questions which have proceeded upon the effect of the marriage tie. It has been recognised in various decisions that, stante matrimonio, a married woman cannot have a settlement apart from her husband. (See, among other cases, Macrorie v. Cowan, March 7, 1862, 24 D. 723; and Palmer v. Russell, 10 Macph. 185). In the case of Barbour v. Adamson, Lord Cranworth (Lord Chancellor), in moving that the judgment of the Court of Session be reversed (and Lord Brougham concurred), said—“Both in England and in Scotland there was no positive statute law making any provision as to derivative settlements; but though there was no statute law, the Courts held such settlements were necessary to be understood. It was assumed that the wife must be with her husband; that children must remain with their father; that any settlement gained by him was gained not for himself alone but for all his family.” …. The result of these authorities seem to me to be that an able-bodied married woman is regarded as her husband's dependent, and her status is lost in his. And where the husband has become chargeable to the parish through bodily infirmity, that the parish is not entitled to separate the wife from him, and refuse her relief while maintaining him.

(2) But it is said, esto, this is sound law as regards chargeability through bodily infirmity; where there is mental infirmity there must of necessity be separation between the husband and wife, and she is to be regarded in pari casu with a widow or divorced wife; and further, the distinction made by lunacy is one which has been recognised by the decisions of the Court. In the first place, lunacy does not operate as divorce, and as matter of fact the wife's settlement and status still remain merged in those of her husband. In the second place, the fact of his lunacy and his chargeability to the Barony Parish undoubtedly pauperises him; and if it pauperises him, the grounds I have adverted to in the preceding paragraph as to her being necessarily a dependent would seem equally to pauperise her. In the case of Palmer v. Russell it was held that a married woman who lived apart from her husband, and who became chargeable as a pauper lunatic, did not thereby pauperise her husband. The Lord President said—“It is the general rule that every pauper lunatic shall be sent to an asylum. That being so, when a married woman comes to be a lunatic, being the wife of a labouring man, this difficulty occurs—he himself is not

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a proper object of parochial relief, but the law takes away his wife from his family and sends her to be maintained at a lunatic asylum, at an expense far greater than he can bear. It is reasonable that the law which deprives him of his marital rights, should provide for the maintenance of the wife in the asylum, the confinement in which is prescribed on grounds of public policy.’ That then is the ground for holding that an ordinary labouring man is not pauperised by his wife's lunacy and consequent chargeability; but the converse by no means holds. The lunatic wife, on grounds of public policy, is removed from the husband's house and taken to the asylum of the parish; but when he becomes a lunatic he also necessarily becomes a pauper, and unless the law is to step in and say—which so far as I am aware, there is no authority for holding—the lunacy of the husband makes the wife sui juris quoad poor-law questions, then she still remains the dependent of her husband, and his pauperisation makes her also a pauper.”

On appeal the Sheriff ( Clark) adhered and stated his grounds of judgment in the following note:—

“ Note.—I have had very considerable difficulty in deciding this case, and have made every inquiry which I conveniently could into the decisions and the practice which has hitherto prevailed, but have been unable to obtain any direct light on the subject. On the fullest consideration it seems to me that the case depends simply on the principle that when a husband is pauperised, his wife also becomes chargeable to the parish—the wife taking the status of the husband, and being in contemplation of law one person with him. The only exception I can well see to the operation of this principle would arise where a woman had separate estate of her own, which could not be made responsible for the debts and obligations of her husband, and out of which she might be able to provide for her own maintenance. No element of that kind exists in the present case. An attempt was made on the part of the defender to draw a distinction between the case where a husband was received as a pauper into the poor-house, and one like the present, where he is lodged at the public expense in an asylum. It was said that in the former the woman was also entitled to be taken into the poorhouse, because the husband and the wife were not to be separated, but that this rule did not apply where, from the nature of the disease by which he was pauperised, a separation between him and his wife was inevitable. I am not able to give effect to this distinction. The ground upon which, where a husband is taken into the poorhouse, the wife must also be provided for by the parish, is not that the parties are not to be separated, but that they are regarded as one person in law, and that the husband being pauperised the wife must be held to be so also.”

The Barony Parochial Board appealed to the Court of Session, and argued—(1) The principle that stante matrimonio husband and wife are one is not here applicable. No doubt the settlement of wife and children is the settlement of the father, but in every case you have in the first instance some one who is a proper object of relief. Given a person entitled to relief, then arises the question who must grant it. It has never yet been held that able-bodied majors are pauperised by any person connected with them. The cases quoted in the Sheriff-Substitute's note do not carry the principle of non-separability so far as the Sheriffs hold. In the case of Palmer v. Russell (quoted supra) it was held that the pauperisation of the wife did not necessarily entail pauperisation of the husband. In Knox v. Hewatt, 8 Macph, 397, the doctrine of non-separation in the family was departed from in the case of a daughter 17 years of age and her father. The true test to be applied in the case is, whether or not the applicant is a fit object of relief? (2) Case of insanity raises no exception to the rule applicable here. The principle laid down in Palmer v. Russell goes a long way to support this view. But the lunacy of the husband, although not equivalent to divorce or desertion, does make a break in the marriage tie. It throws to the ground, so long as it lasts, the husband's curatorial and marital rights.

Argued for respondent—(1) The facts here disclosed in evidence showed that the applicant was not able-bodied in the sense of being able to earn her own subsistence. (2) An able-bodied wife deserted and left with children is entitled to relief for herself and them, and the principle of non-separation applied in such a case is applicable universally. The case of Hay v. Scott, 15 S. 67, shows that desertion is in matters of poor-law equivalent to the death of the husband, Therefore it will not do to refer to a deserted woman as in pari casu with one whose husband is, as here, removed from her by force of law.

At advising—