Scottish Court of Session Decisions

This was an action raised by the Roxburgh, Berwick, and Selkirk District Board of Lunacy, in the Sheriff Court at Selkirk, against the Parish Council of Selkirk for recovery of £32, 13s. 9d., in respect of the board and maintenance of George Dixon, a pauper lunatic, in the pursuers' asylum at Melrose from 25th January 1900 to 15th May 1901.

The following narrative of the facts is taken from the note appended to the interlocutor of the Sheriff-Substitute ( Smith):—“In February 1899 George Dixon was apprehended at Rothesay on a charge of breach of the peace committed there, was convicted, and sent to the prison of Greenock for five days. On his liberation he was immediately re-arrested upon a charge of fraud lodged against him in Rothesay. He was taken back there, examined, and recommitted to Greenock. Various other warrants being out against him from different parts of the country, he was taken from one place to another for examination and committed to various prisons. On 7th March he was brought from Glasgow to Selkirk for examination on a charge of fraud, and thereafter committed to the prison of Edinburgh. He was thereafter on a similar charge sent for examination to Jedburgh and recommitted to Edinburgh. The Crown authorities eventually resolved to have Dixon tried by sheriff and jury at Selkirk upon the charges against him for offences committed in the counties of Selkirk and Roxburgh. At the pleading diet in Edinburgh on 4th May two doctors' certificates, dated respectively 14th and 20th April, were produced, to the effect that at these dates Dixon was of unsound mind. The question of insanity was reserved for consideration at the next diet. At the trial at Selkirk on 15th May a plea of insanity in bar of trial was put forward and sustained, and the prisoner was ordered to be detained until Her Majesty's pleasure should be known. Dixon was thereafter committed to Perth General Prison, where he remained till 15th January 1900, when the Secretary for Scotland ordered him to be removed to the Roxburgh District Asylum. He was removed accordingly on 25th January. The asylum authorities now sue the Parish Council of Selkirk for Dixon's maintenance from 25th January 1900 to 15th May 1901. The pursuers allege that they have been unable to ascertain the parish of Dixon's settlement, and that the defenders are liable in respect that the parish of Selkirk was the parish in and from which Dixon was taken and sent to the asylum as provided for by section 78 of the Lunacy Act 1857.”

The Lunacy (Scotland) Act 1857 (20 and 21 Vict. c. 71) enacts as follows:—Section 78—“If the parish of the settlement of any such pauper lunatic cannot be ascertained, and if the lunatic has no means of defraying the expense of his maintenance, nor any relations who can be made liable for the same, the expenses attending the taking and sending such lunatic and of his maintenance in the district asylum shall be defrayed by the parish in and from which he was taken and sent, but with recourse nevertheless to such parish at any time when it shall appear that such expenses are legally chargeable to any other party or parish against such party or parish, and who or which shall be liable also in interest and expenses, and the sheriff of the county in which the parish defraying such expenses in the first instance is situated shall certify under his hand the amount of such expenses, and such certificate shall be final and conclusive as to such amount, and shall not be subject to review by any process whatsoever under any proceeding instituted for recovery of the same, and the party entitled to recover such expenses shall proceed as accords of law against the party or the parish liable for the same by summary process before the sheriff of the county within which such party resides or in which such parish is situated, and the judgment of such sheriff shall be final: Provided always that the parish of settlement shall not in any case be liable in repayment of the expenses incurred in relation to any lunatic as aforesaid, unless written notice shall have been given by the parish or party disbursing the same to the parochial board of the parish of settlement, and shall then only be liable for the expenses incurred subsequent to such notice and for the year preceding.”

The pursuers pleaded—“The defenders are liable as concluded for in respect that section 78 of the Act 20 and 21 Vict. cap. 71, applies, and that in the sense of that section the parish of Selkirk is the parish in and from which the lunatic was taken and sent.”

The defenders pleaded—“(1) The pursuers' averments are irrelevant and insufficient to support the conclusions of the action. (2) The defenders' parish not being the parish in and from which the pauper was taken and sent to the pursuers' asylum, the defenders are not liable for his maintenance under the Act in question, and should be assoilzied with expenses.”

On 29th July 1901 the Sheriff-Substitute pronounced an interlocutor whereby he sustained the first and second pleas-in-law for the defenders, and assoilzied them from the conclusions of the action.

Note.—[ After stating the facts ut supra]—“The question as to what the parish is in and from which Dixon was taken and sent in the circumstances set forth here is one of considerable difficulty. I am only concerned here with the question of the liability of Selkirk, but I think it is unfortunate that that question must be decided in the absence of any of the other parishes which might possibly be held liable, and one or other of which apparently must be liable if Selkirk is not.

Taking the case, however, as it is presented, I have come to the conclusion that whatever the parish of liability may be, it is not the parish of Selkirk.

The section specifies the parish of liability

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as that in which the person was taken, and that from which he was sent to the asylum. No parish in the circumstances here set forth directly and literally satisfies both these requirements. Giving the exact and literal meaning to the words, Dixon was ‘taken’ in Rothesay and was ‘sent’ to Melrose from Perth. It would, however, be a legitimate argument that a parish which, in a reasonable though not strictly literal sense, satisfies both these requirements, is the parish contemplated by the statute. It might well be maintained that the parish in which literally the person was taken must be held constructively to be that from which he was sent, because, having once got the parish in which he was taken, any intermediate parish is merely to be regarded as incidentally passed through in the process of sending to the asylum. Or, conversely, it might be that having once got the parish from which the person was sent, that must be held constructively to be the parish in which he was taken. The pursuers here are trying to fix liability upon a parish which does not, in a literal sense, satisfy either of these requirements. Both exprestions have to be applied constructively. Dixon was not apprehended in Selkirk, and it is not even averted that any crime on account of which he was apprehended was committed in that parish. On the other hand, he was not sent to Melrose from Selkirk, but from Perth. The pursuers rest their case upon the fact that Dixon, having been brought to Selkirk for trial, was there declared to be insane and unfit to be tried, and an order pronounced that he should be detained till Her Majesty's pleasure should be known. It is maintained that it was in virtue of the order then pronounced that Dixon had the stamp of lunacy impressed upon him, and was under that order sent to Melrose, all subsequent procedure being merely incidental to the execution of that order. The pursuers read the section as if it enacted that the parish of liability is that in which the person is found to be insane. It is very difficult to give that meaning to the words of the section, and it is a meaning which would lead to such extraordinary results that it is one which seems to me should be avoided if it is possible to find any other. It is to be noted that had the Crown authorities so desired, Dixon might equally well have been sent for trial before the High Court in Edinburgh, or the Circuit Court at Jedburgh. Had either of these courses been adopted, then it was admitted that the parish of liability would not have been Selkirk, but Edinburgh or Jedburgh, as the case might be. A principle of interpretation which makes the test of liability to depend upon the place of trial does not commend itself to my mind. The anomalous result of applying such a test would be very clear if the question arose in a less complicated and more usual state of facts. Suppose, for example, Dixon had resided for a year in the parish of Galashiels, and was there arrested upon a charge of crime committed within that parish, and taken to Selkirk for trial, and an interlocutor like that in this case pronounced, the result of applying the pursuers' theory would be that Selkirk rather than Galashiels would be the parish of liability. Such a result would be plainly contrary to the intention of the section. It is well to keep in view what the Sheriff's interlocutor here really was. It ‘finds it sufficiently instructed that the panel George Dixon is in a state of insanity, and cannot be tried under the present indictment: Therefore on the motion of the procurator-fiscal, deserts the diet pro loco et tempore: Further, in terms of the provisions in the Act 20 and 21 Vict. cap. 71, section 87, orders the panel to be kept in strict custody until Her Majesty's pleasure be known; meantime ordains the panel to be carried to and detained in the prison of Edinburgh.’ The Sheriff is dealing with a man who was not ‘taken in’ Selkirk, but was ‘taken to’ Selkirk, for the limited purpose of being tried for certain crimes alleged to have been committed within the sheriffdom. That purpose could not be carried out because he was proved to be insane, and the Sheriff merely ordered the continuance of his detention in the hands of the Crown authorities until a further order, with which the Sheriff had nothing to do, was pronounced. The Sheriff was not called upon to deal with the question as to when and where insanity commenced, and there is no reason for presuming that it commenced in Selkirk—the presumption is the other way. He does not in fact deal with the question of insanity at all, except as bearing upon the prisoner's temporary unfitness for trial. It was not on his order that Dixon was committed to Melrose. It may be said that the ultimate order followed upon the Sheriff's interlocutor, and was the result of it; but in the same sense the Sheriff's interlocutor was the result of previous procedure, and only one intermediate link in the chain which led up to the final order. It seems to me that the parish of liability must be either that from which Dixon was immediately sent to Melrose, or that in which he was first apprehended, and that there is no ground for selecting an intermediate parish like Selkirk, to which Dixon was only brought after his detention in the hands of the Crown authorities had begun, and from which he was taken before that detention came to an end.

The only decision under the section to which I was referred was the case of Gemmel v. Beattie, 1861, 3 Poor Law Mag. 458. That decision is one to which great weight must be attached, though it is not actually binding; and the view there taken by the learned Sheriffs seems to me to lead necessarily to the conclusion at which I have arrived in this case.”

The pursuers appealed to the Court of Session.

The defenders objected to the competency of the appeal, on the ground that the decision of the Sheriff in an action founded on section 78 of the Lunacy (Scotland) Act

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1857 was declared to be final.

The pursuers maintained that the action did not fall within the finality clause of section 78, in respect that it was not based on a certificate granted by the Sheriff in terms of that section, nor was it an action by one parish against another.