Scottish Court of Session Decisions

The Poor Law (Scotland) Act 1898 (61 and 62 Vict. c. 21), sec. 1, enacts as follows;—“From and after the passing of this Act no person shall be held to have acquired a settlement in any parish in Scotland by residence therein, unless such person shall, either before or after or partly before and partly after the commencement of this Act, have resided for three years continuously in such parish, and shall have maintained himself without having recourse to common begging either by himself or his family, and without having received or applied for parochial relief.”

In February 1901 the Parish Council of Kirkintilloch raised an action against the Parish Council of Eastwood to have it declared that on 28th September 1899, when Peter M'Parlane M'Cann, then an inmate of the Dumbarton Poorhouse, became a proper object of parochial relief, the parish of Eastwood was the parish of his settlement, and as such was liable to relieve the pursuers of all sums incurred on account of him; and to have the defenders ordained to pay the pursuers £27, 2s., being the amount of advances made on behalf of M'Cann, and all further sums that the pursuers might thereafter pay on his behalf.

The pursuers pleaded—“(2) The parish of Eastwood is liable as concluded for, in respect that (1st) it is the parish of the pauper's birth; (2nd) it was the residential settlement of his father; (3rd) the pauper has all along been mentally and physically incapable of losing his settlement in said parish of Eastwood, and of acquiring a settlement by residence in the parish of Kirkintilloch, and has not acquired a settle-in Kirkintilloch; (4th) he has never during the whole period of his residence in said parish maintained himself, but has been entirely supported by charity; (5th) he has never, since October 1887, when his mother was a pauper chargeable to Eastwood parish, resided with, been dependent on, or received any support from his mother. (4) The pursuers having expended on the aliment of said pauper the sum mentioned in the petitory conclusion of the summons, they are entitled to decree against the defenders for said sum, and such further sums as they may advance.”

The defenders pleaded—“(1) The said Peter M'Parlane M'Cann having resided for more than three years continuously in the parish of Kirkintilloch after having attained the age of fourteen years, without having recourse to common begging, and without having received or applied for parochial relief, and having thus acquired a settlement by residence in the said parish, the defenders are not liable for his maintenance or to relieve the pursuers. (3) The said Peter M'Parlane M'Cann not having been an imbecile during his residence in the pursuers' parish, was capable of acquiring and did acquire a settlement by residence in said parish.”

A proof was led. The facts proved are fully stated in the opinions of the Lord Ordinary and the Inner House Judges.

On 24th January 1902 the Lord Ordinary ( Stormonth Darling) assoilzied the defenders from the conclusions of the summons, and decerned.

Note.—“This case relates to the liability for a pauper Peter M'Cann, who is an inmate of Dumbarton Poorhouse. He was born (in Eastwood Parish) on 12th April 1880, and when in his third year he contracted hydrocephalus, which is said to have been brought on by a fall on his head. The disease became chronic. Its results were total blindness, paralysis in both legs, and partial loss of power in the right hand, besides the characteristic enlargement and motion of the head. His father died on 6th April 1887, having at that time a residential settlement in the parish of Eastwood, and the widow received parochial relief from that parish between 17th May 1887 and 29th April 1889. The pauper resided with his mother until October 1887, when he was admitted to Broomhill Home for Incurables, in the parish of Kirkintilloch. He remained there, supported entirely by the funds of the Institution, until 28th September 1899, a period of nearly twelve years. His removal was due partly to his having been found somewhat difficult to manage, but mainly to the directors having resolved to enforce more strictly than formerly a rule of the Institution against the admission of mental cases. He was then taken to Dumbarton Poorhouse, on a medical certificate which answered ‘No’ to the question whether he was ‘lunatic, insane, idiot, or of unsound mind.’ The doctor who gave the certificate explains that he answered the question in that way in order to get him into the poorhouse, but it is a significant fact that since he went there he has never been removed to the lunatic wards nor treated as other than an ordinary hospital patient, helpless from his physical infirmities, and irritable at times, as many chronic patients are, but otherwise not difficult to manage.

His mental state has been the subject of a good deal of evidence presenting considerable difference of opinion. Dr Yellow-lees and Dr Clouston class him as a hydrocephalic imbecile whom they would have no hesitation in certifying as insane. Others again, particularly Dr Carswell, attribute his limited intelligence mainly to his physical infirmities and his consequently defective education. But even Drs Yellowlees and Clouston admit that he is articulate in speech, that his words convey his meaning, that he has no delusions, and that he has ‘a wonderful memory,’ for he can repeat whole psalms on being told their numbers. I think the fair result of the evidence is that his mind is weak but not disordered, and that he is not by any means an idiot.

These being the facts, the first question is whether he has been mentally capable of acquiring a settlement by residence in the parish of Kirkintilloch since he emerged from pupilarity on 12th April 1894? And if so, the second question is whether his residence in a charitable institution, and at the expense of the charity, was of such a character as to satisfy the provisions of section 1 of the Poor Law (Scotland) Act 1898 (61 and 62 Vict. c. 21), or, in other words, whether he can be said during his residence there of more than three years to have maintained himself without having recourse to common begging and without having received or applied for parochial relief?

Now, in all poor law questions it is of much more importance to preserve uniformity of decision than to make any particular case square exactly with one's own notions of logic or even equity. I am alive to the difficulty of holding that a residential settlement which involves the idea of a certain amount of volition and choice has been acquired by one so absolutely helpless as this lad, whose very livelihood depends on his going wherever he is sent by those who are either willing or bound to support him. But it seems to me that a rule has been established by the cases of Cassels v. Somerville and Scott, June 24, 1885, 12 R. 1155, 22 S.L.R. 772; and Nixon v. Rowand, December 20, 1887, 15 R. 191, 25 S.L.R. 175, to the effect that where a person has not been certified as a lunatic mere weak-mindedness or congenital imbecility not amounting to idiocy, though coupled with incapacity to earn a living, will not prevent his acquisition of a residential settlement. In the second of these cases Lord Kinnear treated the first as establishing ‘a general rule;’ and in the case of Rutherglen v. Glenbucket and Dalziel, October 24, 1875, 33 S.L.R. 366, Lord Moncreiff expressed the general rule thus—‘When a pauper of weak mind has not been certified as a lunatic, and where it is not proved that she is in point of fact a dangerous lunatic or an absolute idiot, the Court will not inquire too closely into the precise degree of imbecility, but if she is proved to possess a certain amount of intelligence and power of work though under supervision, the Court will as a general rule hold that she is not in such a mental condition as to be incapable of having a settlement of

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her own.’ Now, the conditions stated by Lord Moncreiff apply precisely to the present case, with the single exception that this lad has no power of work. But that arises from physical not mental disability, and it seems to me that a power of work so slight that it does not aid in earning a livelihood cannot possibly affect the principle.

The second point is one of considerable general interest, and it has not been in terms decided by this Court. There is undoubtedly some hardship in a parish within which benevolent persons have set up a charitable institution being thereby saddled with liability for imported paupers. Possibly such a case may be a fit subject for parliamentary consideration. But I have to deal with the statutes and decisions as they stand, and it seems to me that the words in section 1 of the Act of 1898 (which are the same as in the repealed section 76 of the Act of 1845) requiring that the pauper shall have maintained himself without having recourse to common begging and without having received or applied for parochial relief, do not mean that he shall have maintained himself by his own industry or out of his own proper funds, but are satisfied if he receives from charitable people the means of maintaining himself without begging and without recourse to the parochial funds. That, I think, is the result of the cases of Thomson v. Gibson, February 13, 1851, 13 D. 683; Hay v. Cumming, and Forbes v. Marshall, June 6, 1851, 13 D. 1057; and Hay v. Ferguson, January 17, 1852, 14 D. 352. It was argued that in the first of these cases the pauper had been supported by his father, who was under obligation to do so, and that thus the pauper's means of livelihood might be said to have been his own. But in the later cases there was the element of charity supplied by strangers, and I read the cases as resting on the broad principle that the statute imposes no obstacle to the acquisition of a residential settlement except the two which it expresses. In Hay v. Ferguson Lord Cowan (who was the Lord Ordinary) construed the statute as meaning that ‘a person by residence for five years shall be held to acquire a settlement, provided only he has maintained himself without deriving the means of his maintenance from common begging or from the parochial funds. If not derived from either of these sources his means of subsistence may, for anything that is contained in the enactment, be derived from any other source whatever without affecting his right by five years' residence to acquire a residential settlement within the parish.’ And Lord Justice-Clerk Hope in the same case said—‘Can there be any other test applied than this—whether she was or was not a burden on the parish? If she was not, what is there to exclude her from acquiring a residence in the parish where she resided for more than five years without having recourse to common begging?’

If that be the principle, I cannot see any distinction either between charity which entirely and charity which almost entirely supports the recipient, or between charity which is given by individuals and charity which is dispensed in an institution. The cases are alike in this that there is no burden on the parochial funds and that there is no preying on the individual inhabitants of the parish, such as common begging involves. Indeed, if the true test be the absence of any burden on the parish, it may be said that the parish and its inhabitants derive a certain benefit from the presence in their midst of a charitable institution which spends money and pays rates.

It seems to me that no question of forisfamiliation arises.

I am therefore of opinion that the pauper has acquired a settlement in Kirkintilloch, and that the defenders must be assoilzied.”

The pursuers reclaimed, and argued—The pauper was mentally incapable of acquiring a settlement. The evidence showed that he had dangerous paroxysms and a total lack of self control. Both his mental and his physical condition were such that it was impossible for him to do any work. In the case of Cassels, supra, and that of Nixon, supra, the pauper was able to do some work. In Boyd v. Beattie, July 12, 1882, 9 R. 1091, 19 S.L.R. 812, the pauper had also been able to do something for himself. In these cases ability to do work of some kind had been one of the main reasons for holding that the pauper could acquire a settlement. A residential settlement had in consequence been frequently called an “industrial” settlement. In the present case the pauper had neither intelligence enough to choose a residence nor ability to maintain himself in whole or in part. How could such a person be held to “have maintained himself” in terms of the statute. A pupil could not acquire a residential settlement, and this pauper was on a lower plane both mentally and physically than a pupil. His confinement in the charitable institution might be likened to imprisonment. He had never been sui juris or in a condition to exercise any civil rights. In such circumstances it was impossible for him to acquire a settlement— Lawson v. Gunn, November 21, 1876, 4 R. 151, 14 S.L.R. 118.

Argued for the defenders—The Lord Ordinary's judgment was sound, and was the necessary result of the authorities quoted in his note. In order to prevent a person being able to acquire a residential settlement nothing short of absolute idiocy would do; the person must be mindless and his imbecility of a very pronounced character— Watson v. Caie, November 19, 1878, 6 R. 202, 16 S.L.R. 121, and cases quoted by Lord Ordinary. Total incapacity for work did not prevent a person being in a position to acquire a settlement— Greig v. Ross, February 10, 1877, 4 R. 465, 14 S.L.R. 346; Keir v. M'Kie, November 1, 1895, 5 P.L.M. (new series), 657; Thomson v. Gibson, 13 D. 683. Some certification that the person is of unsound

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mind was necessary to evidence incapacity to acquire a settlement— Parish Council of Rutherglen v. Parish Council of Glenbucket, October 24, 1895, 33 S.L.R. 366. In the present case the pauper was never a certified lunatic. On the contrary, he had been taken to Dumbarton Poorhouse on a certificate that he was not insane. If a person not an absolute lunatic or idiot had been maintained by any means, so long as it was not by common begging or parochial relief he was in a position to acquire a residential settlement. The maintenance did not need to be by his own work or by his relations or friends, any maintenance was sufficient which was not either common begging or parochial relief.

At advising—