Scottish Court of Session Decisions

This was an action raised at the instance of the Inspector of Poor of the Barony Parish of Glasgow against the Inspector of Poor of the Parish of Cathcart, in which the pursuer sought reimbursement from the defender of certain expenditure incurred on account of a lunatic named David Hunter Oliphant, whose settlement was in Cathcart Parish. The lunatic was born in 1858; he was a congenital idiot, and had been an inmate of Larbert Institution for Imbeciles from November 1870 to January 1878. At the latter date he was discharged from Larbert Institution on account of his age, his father, who had agreed to pay for his maintenance there £25 a-year, being then in arrear to the extent of £39, 16s. Those arrears were not recovered. On 18th February 1878 the father, who at that time resided in the Barony Parish, made application to the inspector of that parish for relief on behalf of the lunatic, and on the following day the inspector, having made inquiry regarding the circumstances of the lunatic's father, presented a petition to the Sheriff under the 14th section of the Lunacy Act (25 and 26 Vict. c. 54) for authority to remove the lunatic to the Barony Parish Asylum, to which he was admitted on the same day. The medical certificates appended to the petition bore that the lunatic was a proper person to be detained under care and treatment. From the assistant inspector's report, appended to the schedule of application for relief, it appeared that the lunatic's father was a clerk with the Scottish Guardian Society at £120 per annum, and resided in a house of three rooms and kitchen, rented at £27 per annum; that exclusive of the lunatic he had eight of a family, viz., “Mary, 24, at service; Jemima, 22, at service; Robert, 21, clerk at 20s. weekly; Jane, 19, at home, states does nothing; Elizth.,

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17, at home, states does nothing; William, 14, message boy; John, 11, at school; Hugh, 8, at school.” The defender stated his willingness to pay £10 per annum towards the lunatic's support; but the committee of relief of the Barony Parish appointed him to pay 5s. per week. On 23d March 1878 statutory notice of chargeability was given to Cathcart, which repudiated liability on the ground that the lunatic's father was quite able to support him, and that he was in no respect an object of parochial relief.

For Barony Parish it was pleaded—“(1) The pauper having been, at the date when he became chargeable to the Barony Parish, and still being, a proper object of parochial relief, the pursuer is entitled to be relieved by the parish of the pauper's settlement of all advances made or to be made on behalf of the pauper. (3) The parish of Cathcart being the parish of David Hunter Oliphant's settlement, the pursuer is entitled to decree against the defender, in respect of the provisions of the Lunacy Acts, and particularly sections 75, 76, and 77 of the Lunacy Act 20 and 21 Vict. cap. 71. (4) Esto the pauper's father is able to provide for his maintenance, it lies with the parish of Cathcart, as the pauper's parish of settlement, to enforce his liability.”

For Cathcart Parish it was pleaded—“(3) The alleged pauper not being a proper object of parochial relief, the defender should be assoilzied. (4) The alleged pauper not having been in a condition dangerous or offensive to public decency, the pursuer was not entitled to interfere with him, or to transmit him to an asylum at the cost of the defender's parish. (5) If the alleged pauper was in the condition before mentioned, the pursuer could only proceed under section 15 of the Lunacy Act, and not having done so, he is not entitled to make the expenses incurred by him, or the costs of the pauper, a charge against the defender's parish.”

A proof was led, the principal facts in which sufficiently appear from the Lord Ordinary's note. The pursuer was examined, and deponed that he considered the lunatic dangerous. The father deponed that the lunatic could not be managed at home, because he was very stubborn and quarrelsome, and that if spoken to or in any way annoyed he would lift the first object he could lay hands on and throw it at his assailants.

The Lord Ordinary assoilzied the defender, and subjoined to his interlocutor the following note:—“There does not seem to be any difficulty in this case as to the parish of settlement of the alleged pauper lunatic David Hunter Oliphant.

“It is not disputed that the parish of settlement of his father Robert Oliphant is the defenfender's parish of Cathcart.

David Hunter Oliphant has been an imbecile from his birth. He was born in February 1858. In November 1870, when between 12 and 13 years of age, he was sent to the Larbert Institution for the Training of Imbeciles, and remained there until January 1878, when he returned to his father's house. After remaining about a month there, he was removed on the 19th of February 1878, when he was 20 years of age, to the pursuer's lunatic asylum at Woodilee. He is, and always has been, incapable of earning a livelihood for himself. In these circumstances it appears to the Lord Ordinary to be clear that his settlement is that of his father, viz., the parish of Cathcart— Fraser v. Robertson, June 4, 1867, 5 Macph. 819; Lawson v. Gunn, Nov. 21, 1876, 4 R. 151; Anderson v. Wilson, June 12, 1878, 5 R. 904.

The real question at issue between the parties appears to the Lord Ordinary to be, Whether the pursuer, the inspector of the Barony Parish, being the parish in which the lunatic was found, was entitled to treat him as a pauper lunatic, to the effect of placing and maintaining him in the asylum with the right of reimbursement from the parish of his settlement?

The facts are, that when David Hunter Oliphant was removed to the asylum his father was in receipt of a salary, as a clerk in an accountant's (Mr Rutherfurd) office, of £120 per annum. He had a wife and eight other children. Of these the two eldest were daughters, and were in service, and presumably supporting themselves. The eldest son Robert, who was 21, had a salary of £50 per annum, which he gave to his mother for the expenses of the establishment. The two next were daughters, 19 and 17 respectively, who were at home, but were of an age to do something for themselves. The next was a boy of 14, who ‘was earning 6s. a-week as a message boy. The two youngest, 11 and 8 respectively, were boys at school.

Robert Oliphant, the father, has now left Mr Rutherfurd's employment and set up in business for himself; but he admits that he is no worse off now than he was in 1878.

In this state of matters the Lord Ordinary is of opinion that the pursuer was not called upon to interfere in this case. It is not a little startling that the child of a man in receipt of £120 a-year should be treated as a pauper lunatic, and the expense of his maintenance in a large measure thrown upon the public. It is a heavy affliction in a family to have an imbecile child among its members. The burden of having to support him in an asylum out of limited means is no doubt a heavy one, but it appears to the Lord Ordinary that it is a burden which a person in Oliphant's circumstances cannot and ought not to throw upon the public.

Had this been a case where the lunatic was dangerous to the lieges, and it had been necessary to take proceedings under the 15th section of 25 and 26 Vict. cap. 54, the pursuer would have had relief against the parish of settlement; but there is no case of that kind. The proceedings were taken under the 14th section of the Act.

The pursuer further maintains that, even if the lunatic's father be able to provide for his maintenance, it lies with the parish of Cathcart, as the lunatic's parish of settlement, to enforce his liability— Dinwoodie v. Graham, January 27, 1870, 8 Macph. 436. But this is quite a different case from that of Dinwoodie. If in this case the lunatic's father was able to provide for his maintenance, he was not a proper object of parochial relief, and ought not to have been so treated. The pursuer had all the facts before him at the time when he removed the lunatic to the asylum, which ought to have led him to that conclusion, and the defender is not bound to relieve him of a burden which he ought never to have incurred.”

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The pursuer reclaimed, and argued—The evidence, taken along with the medical certificates, clearly showed that the lunatic, although not outrageous, was in a condition in which he might at any moment become a source of danger to the lieges, and consequently that his removal to an asylum was imperatively necessary. In these circumstances the pursuer was justified in interfering; and having regard to section 59 of the Poor Law Act (8 and 9 Vict. c. 83), section 112 of the Lunacy Act (20 and 21 Vict. c. 71), and 15 of the Lunacy Act (25 and 26 Vict c. 54), he was bound to attend to the case. The objection taken by the defender that proceedings had not been adopted under section 15 of the Act 25 and and 26 Vict. c. 54, was groundless, inasmuch as the defender was in no way prejudiced thereby. It was equally open to the pursuer to take action under section 14 of that statute, and that course was invariably adopted in practice to save expense. The father's circumstances were not such as to warrant his being made liable for the entire support of his son in an asylum, the law having always recognised lunacy as affording an exceptional ground entitling to parochial relief, even in cases where otherwise it would not have been legally claimable. But in any event, if there were any doubt as to the father's ability to maintain his child in an asylum, it fell to the parish of settlement and not to the relieving parish, whose duty was simply interim and temporary, to solve the doubt and enforce the father's liability.

Argued for the defender—The evidence clearly established that the lunatic was not in a state threatening danger to the lieges at the date of his removal to asylum; he was living in his father's house; his father's circumstances showed that he was quite able to maintain the lunatic even in an asylum, if his removal thereto was necessary, which was denied. The lunatic was not found wandering about and destitute, and therefore the pursuer was not called upon to interfere at all; having interfered he must bear the consequences.

Authorities referred to, in addition to those mentioned in the Lord Ordinary's note— M'Corrie v. Cowan, 24 D. 723, and Palmer v. Russell, 10 Macph. 185.