Scottish Court of Session Decisions

“ Opinion.—This case raises a novel question in the administration of the poor law. On 30th March 1894 Daniel Watson became insane and was removed to Murthly Asylum by the defender, the Inspector of Poor of the parish of Rattray, and was subsequently maintained as a pauper lunatic in the asylum.

“On 10th April the defender applied under the 77th section of the Poor Law Act of 1845, and subsequent statutes, to the Justices of the Peace for the removal of Watson and his wife and family to Tynemouth, England, in which Watson was said to have been born. After hearing evidence on 17th April, the Justices on 24th April granted warrant in usual form for the removal of Watson and his wife and three children to Tynemouth.

“The present action is brought by Watson's wife and children concluding for reduction of the removal-order, in so far as it ordered their removal to Tynemouth. Assuming the pursuer Mrs Watson's statements to be true she has sufficient interest to insist in the action. She says she was able to support herself and family at Rattray, and that she could get no employment at Tynemouth; but that she was not in safety to return to Rattray, because if she did so and subsequently became chargeable in Scotland she was liable under section 79 of the Poor Law Act of 1845 to be prosecuted as a vagabond and punished by imprisonment with or without hard labour for a period not exceeding two months.

“The defender pleads that the action is incompetent, and so it certainly would be if Daniel Watson could be regarded as an ordinary pauper. In that case it would have been absolutely in the discretion of the Justices to order the whole family to be removed to England without drawing any distinction between them; and this Court would have had no power to review such a judgment.

“The peculiarity of the case is that Daniel Watson was a pauper lunatic, who in the public interest and by the public law had to be placed in an asylum and maintained at the expense of the ratepayers. It was not a case of ordinary pauperism. The case of a pauper lunatic is now clearly recognised as exceptional in the administration of the poor law, and the ordinary rules and consequences do not apply or attach to it. For instance, the lunacy of a child does not pauperise the father although he is unable to support him in an asylum —Palmer v. Russell, 10 Macph. 185. Again, the parish of the lunatic's settlement (even if derivative) at the date of his being placed in the asylum remains permanently liable for his support, whatever changes may take place in the settlement of the lunatic's parent. Again, to come nearer the present case the wife of a pauper lunatic is regarded and dealt with as if she were sui juris, a widow, or a deserted wife. In the case of Scott v. Beattie, 7 R. 1047, the question arose whether an able-bodied woman, the wife of a pauper lunatic, was entitled to parochial relief. The Sheriffs held that she was, on the ground that she must be held to be one person with her husband in law, and that the husband being pauperised the wife must be so also. This Court held otherwise, and found that the woman was not a proper object of parochial relief.

“Lord President Inglis said—‘If the husband were struck down by sudden illness, he and his family would be entitled to and would get relief, because the husband's power to earn subsistence was gone for himself and family. It is no part of the wife's duty to earn the living of the family—that is the husband's duty—hers is to nurse the children. But that is not the case before us. The husband is insane, and has been separated from his wife on grounds of public policy, and maintained at the public expense. She is practically sui juris —his curatorial power is in abeyance—and she is accordingly in the position of an unmarried woman. She has no one dependent on her, and is able to earn a living. That being so, I think the parish cannot be charged with her maintenance. The facts, moreover, of this case do not place the applicant in a better position than that of a deserted wife or widow, able-bodied and without incumbrance, and it is well settled that such persons are not proper objects for parochial relief.’

“If the law thus stated by high authority on the subject, and adopted by the rest of Court, is sound—and I must hold it to be so— it rules this case. The pursuer Mrs Watson, on her husband being placed in the asylum, was left in the position of an unmarried woman, or a widow, or a deserted wife. She fell to be treated as a separate person from her husband, and as on the one hand being able-bodied she was not entitled to receive parochial relief, so on the other hand she was entitled to exemption from the liability to be removed which attaches to the wife of an ordinary pauper.

“But that is not the case before us. The husband is insane, and has been separated from his wife on grounds of public policy, and maintained at the public expense. She is practically sui juris—his curatorial power is in obeyance—and she is accordingly in the position of an unmarried woman. She has no one dependent on her, and is able to earn a living. That being so, I think the parish cannot be charged with her maintenance.

“I observe that evidence was led before the Justices that the defender had given Mrs Watson five shillings on the 30th March; but that sum was repaid before the hearing before the Justices, and therefore she could not in any fair sense be said at the date of the order for removal to be ‘in the course of receiving parochial relief.’ But I do not proceed upon this. I found on the broad facts which are frankly admitted, viz., that the removal order was asked for and made, not on the footing that Mrs Watson was in course of receiving parochial relief, but on the footing that Daniel Watson was the pauper, that he was pauperised by his lunacy and the expenses attendant on it, and that his wife and children were to be removed simply as dependent upon and identified with him. If the pursuer Mrs Watson was not identified with him, the order quoad her was bad —a nullity.

“In this view it is not necessary to consider the other grounds of reduction urged by the pursuers.

“It remains to consider whether this Court can set the order aside. If it had merely been that the Justices exercised their discretion badly, or proceeded on insufficient evidence, or admitted incompetent evidence, reduction might have been incompetent.

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