Scottish Court of Session Decisions

Thomas Lees, Inspector of Poor, North Berwick, brought an action against T. W. Kemp, Inspector of Poor, Haddington, to have it found and declared that the parish of Haddington was liable for sums paid and to be paid in the relief of a pauper lunatic, Michael Buchan, confined in the Haddington District Lunatic Asylum.

It was admitted that Michael Buchan was born in Haddington on 26th August 1867, that since his birth up till 19th June 1889, when he was admitted to the above asylum as a pauper lunatic, with the exception of the period from 25th November 1885 to 26th February 1886, when he was confined in the same asylum, he had lived in family with his father in various parts of Haddingtonshire, that he had never earned wages, and that neither he nor his father, who was still alive, had at the date of his becoming chargeable a residential settlement in Haddingtonshire.

The Sheriff-Substitute ( Shirreff), after a proof, the import of which sufficiently appears from his note, pronounced the following interlocutor:—“Finds in point of fact, first, that Michael Buchan designed in the petition, has been during his whole life an idiot or imbecile; second, that he has never been able to earn anything for his own support; third, that the said Michael Buchan has been during his whole life, prior to his removal to the Haddington District Asylum where he now is, maintained by his father as a member of his family, except during the period of three months from 25th November 1885, when he was maintained by the Parochial Board of Dunbar in the Haddington Asylum: Finds in point of law, that in these circumstances the parish of his father's settlement is the parish bound to relieve the pursuer of the maintenance of Michael Buchan: Therefore

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sustains the defences, assoilzies the defender, and decerns, &c.

“ Note.—This is an action at the instance of the inspector of poor of the parish of North Berwick, for recovery of outlays in the maintenance of Michael Buchan, a lunatic, on the ground that Haddington as the parish of the lunatic's birth, is liable for his maintenance.

The lunatic was born in the parish of Haddington, on 26th August 1867. He was residing with his father at Balgone Barns in the parish of North Berwick, in June 1889, when his father applied for parochial relief for him, and he was admitted to the Haddington District Asylum, where he still is.

The lunatic has never been able for any work so as to earn anything for his own support. He has been taught to read and write and count a little. He has a certain amount of intelligence. He can tell the hours on a clock, or go a message to a shop. The whole of the five medical witnesses concur in the opinion that he has never been able to earn his own livelihood, and is not now able to do so.

He has resided in his father's family from his birth till he was removed to the Asylum in June 1889, excepting a period of three months from 25th November 1885, when he was previously in the Asylum.

Although he had attained the age of twenty-two years when he became chargeable to the parish of North Berwick, his father was still bound to support him. After he attained majority, he did nothing to break the ties that ‘united him to the family circle.’ He was therefore ‘still a child of the house in the ordinary sense of that expression, a member of the family of which his father was the head, and consequently his settlement still depended on that of his father.’— Fraser v. Robertson, June 5, 1867, 5 Macph. 819, per Lord-Justice-Clerk, 823.

The only ground on which in this action, the parish of Haddington is sought to be made liable for the maintenance of the lunatic is that Haddington is his own parish of birth. As the Sheriff-Substitute is humbly of opinion that the parish bound to support the lunatic is the parish of his father's settlement, the defender, as representing the parish of Haddington, is assoilzied.”

The pursuer appealed to the Court of Session, and argued—This pauper was not a congenital idiot, and not therefore in perpetual pupillarity. His mind had always been weak, no doubt, but he had sufficient intelligence to acquire a settlement of his own. He could apparently have earned a little if he had been set to work under proper supervison. If his father had been dead, the place where he had acquired a residential settlement or his own birth settlement, as the case might be, would have been liable. Here his birth settlement was liable. Continued residence in a father's house did not make a man's settlement necessarily the same as his father's unless he were a congenital idiot. Wealthy men's sons often lived with their fathers and earned nothing, and yet might be forisfamiliated. This man became forisfamiliated when he attained majority. The case was ruled by the cases of Cassels v. Somerville & Scott, June 24, 1885, 12 R. 1155, and Nixon v. Rowand, December 20, 1887, 15 R. 191.

Argued for Haddington—In Cassels' case the father was dead, and in Nixon's the father had deserted his family. Here the father was still alive, and the pauper, whether capable of acquiring a settlement of his own—which was doubtful—or not, had never in fact been forisfamiliated. The case was ruled, as the Sheriff-Substitute had held, by that of Fraser v. Robertson, June 4, 1867, 5 Macph. 819.

At advising—