Scottish Court of Session Decisions

Marion Fulton, whose settlement at the time was in the parish of Kilmaurs, gave birth on 16th October 1887 to an illegitimate son Robert Fulton or Hay, who was deaf and dumb from his birth.

In 1888 Or 1889 Marion Fulton married William M'connell, whose settlement was in the parish of Kirkmichael. On 22nd November 1889 William M'connell removed with his wife to the parish of Kilmarnock, where he acquired a settlement.

In May 1894 the child was placed in the Ayr District Asylum, but after the lapse of about ten weeks was discharged on the ground that he was not insane. He was thereupon taken charge of by the Inspector for Kirkmichael, and was placed on the roll of that parish as an ordinary pauper. His putative father, however, who was a farmer, paid accounts rendered to him for the outlays made, both during the child's detention in the Asylum, and thereafter from time to time by the parish of Kirkmichael.

In January 1896 the boy was sent to an institution in Glasgow for training the deaf and dumb, his name was struck off the roll of paupers for Kirkmichael, and the putative father discharged all outlays made by that parish down to that date.

Thereafter the superintendent of the institution intimated that the boy was a hopeless imbecile, and requested that he might be removed. Accordingly on 16th April 1896 Kirkmichael removed him from the institution, and restored his name to their roll as an ordinary pauper. The boy was boarded out, and the agents for Kirkmichael, on applying to the agent for the putative father, received payment from him of certain sums which they remitted direct to the woman with whom the boy was boarded. All outlays down to 2nd July 1896 were thus discharged by the putative father, and the boy's name was once more deleted from Kirkmichael roll. On 30th July, however, it was again replaced on the roll, no account for outlays since 2nd July having been presented to the father, and no payment having been made.

In these circumstances the Parish Council of Kirkmichael raised an action in the Sheriff Court at Kilmarnock against the Parish Council of Kilmarnock to be relieved of advances made by them on account of Robert Fulton or Hay down to February 1897, amounting to £12, 5s. 4d., and of all further sums paid on account since that date.

In addition to the facts above set forth, the pursuers averred that it was by the advice of the Local Government Board that they took charge of the boy on his removal from the institution in Glasgow.

The defenders explained that the putative father had always been and still was able and willing to pay all outlays incurred on account of the boy. They further produced a letter from the father's agent to the pursuer's agents in the following terms:— “Dear Sirs,— I have received intimation from Messrs J. & J. Sturrock & Co. that your clients have raised an action against the Parish Council of Kilmarnock in this matter, and that they look to my client for relief. I have, of course, nothing to do with the merits of the action, nor with your client's object in raising it; but in view of the intimation referred to I desire to intimate to you, as I have done to Messrs Sturrock, that my client does not repudiate liability for the child's maintenance. If, therefore, your clients have made disbursements, and have any account against him for maintenance, I shall be glad that you render it, and if correct it will be paid.”

The pursuers pleaded— “(1) The said pauper child Robert Fulton or Hay being illegitimate, followed the settlement of his mother, the said Marion Fulton or M'Connell, and the latter being married takes the settlement of her husband, and the same being now the parish of Kilmarnock, the defenders are liable in the sum sued for.”

The defenders pleaded—“(4) The putative father being willing to continue to relieve pursuers of their outlays on behalf of the said Robert Fulton or Hay, and never having

Page: 920↓

refused to do so, and having intimated to pursuers his willingness to pay the sum sued for, pursuers should have no interest to insist in the action, which should be dismissed with expenses.”

On 26th January 1898 the Sheriff-Substitute ( Hall) pronounced an interlocutor finding that Robert Fulton or Hay followed the settlement of his mother, and that Kilmarnock being the parish of the mother's settlement, the pursuer was entitled to be relieved by the defenders, and were not bound to have recourse against the putative father.

Note.—“In this case the putative father, while admitting liability, has neither made nor offered to make any provision for the bastard's maintenance, but merely pays such accounts as are from time to time rendered to him of the sums expended on his child's behalf. If Kilmarnock is really the parish of the child's settlement, the pursuers seem not to be bound to transact with the putative father in a matter which is not properly their concern, and they have a manifest interest to get the liability of the defenders ascertained, since in the event of the putative father's death or insolvency they might find themselves cut off from that source of repayment. In the circumstances in which John Fulton or Hay is placed, it cannot, I think, be said that when the sum now sued for was expended by the pursuers he was not a proper object of relief.

The observations of the late Lord President Inglis in Anderson v. Paterson, June 12, 1878, 5 R. 904, to which I was referred, are obiter, and at all events apply to the entirely different case of a legitimate child whose father, an able-bodied man, was alive, and his residence known to the relieving parish. On the question of settlement, there can, I presume, be no doubt that a bastard follows that of its mother, even should she change it after he has become chargeable, unless he is detained in a lunatic asylum under the Lunacy (Scotland) Act 1857 (20 and 21 Vict. c. 71), when, in terms of section 75, his settlement as it stood at the date of his admission remains permanent— Farquharson v. Liddell, February 23, 1894, 21 R. 583. Here John Fulton or Hay was on 2nd May 1894 placed in the Ayrshire District Asylum at Glengall, but was removed on 7th July following by order of Dr Skae, the medical superintendent, on the ground that though a deaf mute he was not an imbecile. Since 7th July 1894 he has been on the roll of Kirk-michael as an ordinary pauper, with the exception of a short interval in 1896. In that year, on the application of the pursuers, under the Act 53 and 54 Vict. c. 43, the Kilmarnock School Board obtained admission for him into an institution for the education of the deaf and dumb, but from it also he was removed after a few months' trial, and this time on the ground that he was imbecile and incapable of being taught. The defenders maintain and offer to prove that he is still imbecile, but whether he is so or not appears to me to have no material bearing on the present question. He certainly is not, and since 7th July 1894 has not been detained in a lunatic asylum under the Lunacy (Scotland) Act 1857. He is therefore beyond the scope of the provision contained in section 75, and the case must, I think, be dealt with on precisely the same footing whatever might be the result of an inquiry into his mental condition. If this is so, the statements and admissions of the parties appear to furnish sufficient data for deciding the question between them.”

The defenders appealed. Their argument sufficiently appears from Lord M'Laron's opinion.

The pursuers founded on the Poor Law Act 1845 (8 and 9 Vict. c. 83), secs. 71 and 72. They maintained that they were entitled to exercise an option between proceeding against the putative father and proceeding against the parish of the child's settlement. If they chose the former course they would not be entitled to be relieved of the expenses it involved— Austin v. Shennan, October 30, 1874, 2 R. 68. They therefore chose the latter course, and were quite within their rights in so doing. At all events, they were entitled to have the question of liability for the pauper's maintenance settled in this process.

At advising—