Scottish Court of Session Decisions

Donald Mackay, Inspector of Poor, Kilmuir-Easter, in the county of Ross and Cromarty, brought an action in the Sheriff Court at Dingwall against John Munro, Inspector of Poor, Lochbroom, in the same county, for, inter alia, repayment of 15s. paid on behalf of Mary Mackenzie, aged twenty-one, an unmarried daughter of Alexander Mackenzie, a pauper, residing in Barbaraville, in the parish of Kilmuir-Easter, during her confinement.

It was averred that Mary Mackenzie, although of age, had been imbecile from her birth, was quite unable to earn a living for herself, had never done so, was and had been dependent on her father all her life, had not been emancipated, had never acquired a settlement of her own, and followed the settlement of her father.

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The defender admitted that Lochbroom was liable for the parochial relief of Alexander Mackenzie and his minor children, not for that of his daughter Mary. The statements made with regard to her were denied, and it was pleaded that “Mary Mackenzie being forisfamiliated or emancipated, has her settlement elsewhere than in the parish of Lochbroom.”

The Sheriff-Substitute ( Hill) allowed a proof, the import of which sufficiently appears from his note and from the opinions of the Judges in the Court of Session, and on 3rd August 1891 he pronounced the following interlocutor:—“Finds (1) that the pauper Alexander Mackenzie was born in the parish of Lochbroom, but has lived in the parish of Kilmuir-Easter since 1869, and has during all that time been receiving parochial relief, for which, so far as properly granted, Lochbroom, as the parish of his birth, admits liability; … (5) that Mary Mackenzie, daughter of the pauper, was born in the parish of Edderton in 1868, was taken to Kilmuir-Easter when a few months old, and has lived in family with her father ever since; (6) that on 14th February 1890 she gave birth to a female illegitimate child, and there is now claimed from the defender 10s. and 5s. of expenses incurred in connection with that event; (7) finds it proved that Mary Mackenzie is a person of weak mind, but that it has not been proved that her mental capacity is such as to make her incapable of acquiring a settlement for herself: (8) Finds in point of law that the above sums of expenses in connection with her confinement, amounting to 15s., having been paid on her account after she became sui juris and capable of acquiring a settlement for herself, are not chargeable against the parish of her father's settlement, &c.

“ Note.—… The 15s. paid on account of Mary Mackenzie was for a nurse, and for extra nourishment to her at the time she gave birth to an illegitimate child. This happened when she was beyond twenty-one years of age, so that she was then sui juris, might be a pauper in her own person, and was no longer chargeable to the parish of her father's settlement unless she was from mental incapacity incapable of acquiring a residential settlement for herself. A great deal of evidence has been led with the view of showing that that was her condition.

It has been clearly proved that she was from infancy and is weak-minded. But that is not enough. The mental incapacity must be such as to prevent her from doing anything to earn a living for herself. Now, some of the witnesses describe her as ‘silly,’ others as ‘imbecile,’ others as ‘just an idiot.’ But it is evident that these expressions are used without any very definite meaning, and throw little light upon the question as to her actual state. That must be ascertained from the facts of her history brought out in the evidence. Now, the evidence is to the effect that from her earliest years she was silly, and different from other children;that for several years she had been sent to school but could be taught nothing, and she can neither read nor write nor count; that as she grew older she could do some domestic work if looked after, such as cooking and washing; could knit and could go a message; and that latterly during several seasons she was occasionally employed as an out-worker on the neighbouring farms, and could do such work under supervision, but when left alone would do nothing, and would sometimes while employed at such work, without any apparent reason, throw down her hoe or other implement and go home, but on all occasions when employed as an out-worker she was paid the same hire as the other women.

Such, I think, are the most important facts brought out in the evidence in regard to Mary Mackenzie. And it happens that two cases have been decided in recent years in which the circumstances are very similar to those in the present case. In Cassels v. Somerville, June 24, 1885, 12 R. 1155, a person who had been from infancy so weak in mind as to be unable at any time to earn anything, though able to do simple labourer's work under supervision, was boarded by his friends for twelve years in a parish. He could only read very imperfectly, could not write, and knew nothing of arithmetic. It was held that his state of mind was not such as to prevent him acquiring by residence a settlement in the parish. And in Nixon v. Rowand, December 20, 1887, 15 R. 191, a woman, twenty-four years of age, who was a congenital imbecile but not an idiot, who was incapable of earning a living, and could not learn either to write or go a message, who could not dress herself, or do ordinary housework without superintendence, was held not to be in such mental condition as to be a perpetual pupil, and therefore was capable of having a settlement of her own.

It appears to me that the condition of Mary Mackenzie is substantially the same as the paupers in these two cases, and that the present case must be ruled by them.”

The pursuer appealed to the Sheriff ( Jameson), who on 26th October 1891 adhered.

Note.—The case would have been one of very great difficulty had it not been for the two decisions quoted by the Sheriff-Substitute in his note, which appear to me to be conclusive of the present case on the points to which they apply. In both of these cases I think that the mental condition and capacity for industry of the pauper were lower than in the present case.

A further point, however, was taken by the agent for the pursuer, who maintained that, even assuming that Mary Mackenzie was capable of acquiring a settlement other than her father's, yet, not being forisfamiliated, she did not and could not acquire such settlement, and that her settlement accordingly remained that of her father to the exclusion of her own birth settlement. The case of Fraser v. Robertson, 5 Macph. 819, seems to settle that a person is not necessarily forisfamiliated

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for poor law purposes by attaining the age of twenty-one. I confess I find some difficulty in reconciling this doctrine with some observations in the case of Craig v. Greig and Macdonald, 1 Macph. 1172. But I think that there is every presumption in favour of the forisfamiliation of a child who has attained majority, unless it is shown that he or she is absolutely and entirely dependent on his or her father for support. It is not necessary for forisfamiliation that a child should leave his or her father's house, if he or she works outside of it on his or her own account. See Dempster v. M' Whannell and Deas, 7 R. 276. In the present case it is proved that Mary Mackenzie did such work as she was fit for, outside her father's house, and was sometime away begging on her own account. Further, it is to be noticed that her father personally did little or nothing for her support, he being a pauper himself. In these circumstances I think that Mary Mackenzie having attained majority, must be held to have been sufficiently forisfamiliated for poor law purposes, and that as an adult pauper she became chargeable to her own parish of birth or her parish of residence if she had such, in place of her father's parish of birth. I certainly think that this conclusion is in accordance with the spirit of the Poor Law Acts of 1579 and 1672, and the proclamation of 1692, which seems to make it clear that when an adult pauper having no residential settlement becomes chargeable, it is the parish of his own birth which must be liable for his support, and not the parish of the birth or residence of his father. It is, I think, to be regretted that the question of forisfamiliation in connection with the administration of the poor law has not been made the subject of express enactment, but standing the law as it does, I am not disposed to lay much stress on the doctrine of forisfamiliation after a child has attained the age of twenty-one. And in the present case I should be very unwilling, on the strength of a doctrine drawn from a branch of the law very different from the law of pauper settlement, to fasten on the parish of Lochbroom the support of a pauper not born there and who never lived there.”

The pursuer appealed to the Court of Session, and argued—The case was ruled by that of Robertson v. Fraser, June 4 1867, 5 Macph. 819, and by the recent case of Lees v. Kemp, October 17, 1891, 29 S.L.R. 6. The case of Lawson v. Gunn, November 21, 1876, 4 R. 151 was also in the appellant's favour.

Argued for the respondent—Forisfamiliation took place at twenty-one although the child continued a member of his father's household—Ersk. i. 6, 53; iii. 9, 23. The presumption was in favour of a person's own birth settlement and not of a derivative settlement. The only exceptions were the cases of children of tender years and of lunatics, who were regarded as in perpetual pupillarity. Here the pauper, although of weak mind, was capable of doing some work, and in that respect differed from the pauper in Lees v. Kemp. This case was ruled by those of Cassels v. Somerville & Scott, June 24, 1885, 12 R. 1155; and Nixon v. Rowand, December 20, 1887, 15 R. 191, the former of which was a fortiori of the present case.

At advising—