Scottish Court of Session Decisions

The Lunacy (Scotland) Act 1857 (20 and 21 Vict. c. 71), sec. 75, enacts—“Every pauper lunatic detained in any district asylum under this Act shall be deemed and held to belong and be chargeable to the parish of the legal settlement of such lunatic at the time the order for his reception in such asylum was granted, and the expense of his maintenance at such district asylum shall be defrayed by such parish accordingly.”

In April 1903 the Parish Council of Brechin brought this action against the Parish Council of Montrose and the Parish Council of Marykirk, concluding that the defenders the Parish Council of Montrose should be ordained to make payment to the pursuers of (1) £131, 19s. 7d., being the amount disbursed by the pursuers in relieving William Crocket, presently an inmate of the Montrose Royal Lunatic Asylum, from 6th October 1896 to 15th February 1903, and (2) £21, 5s. 1d., being interest on the amount so disbursed, or otherwise that the defenders the Parish Council of Marykirk should be ordained to make payment to the pursuer's of (1) £166, 5s. 6d., being the amount disbursed by the pursuers in relieving the said William Crocket from 24th October 1894 to 15th February 1903, and (2) £32, 19s. 3d., being interest on the amount so disbursed, and that the defenders, or whichever should be found liable, should be ordained to relieve

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the pursuers of all disbursements that might require to be made by the pursuers for the said William Crocket during the time he might continue a proper object of parochial relief.

A proof was led, which disclosed the following facts:—The pauper William Crocket was born in the parish of Marykirk on 4th November 1862.

John Crocket, his father, was born in Brechin and resided for some time in Marykirk, but at Whitsunday 1872 went to reside in Montrose. On 15th August 1878 he applied for and received relief from the parish of Montrose. From that date to his death in August 1898 he repeatedly received parochial relief from Montrose.

In 1874 William Crocket lost his right hand by an accident, and was then and continued to be a person of weak mind, and incapable of earning a livelihood. He first received parochial outdoor relief from the parish of Montrose on 11th November 1876, at which date he was residing in family with his father, who was at that time, so far as the evidence went, an able-bodied man. The outdoor relief afforded to William Crocket while resident with his father was continued till 11th April 1877, when he was placed in Montrose Royal Lunatic Asylum by order of the Sheriff. He was discharged from the Asylum “recovered” on 18th December 1877. He was again in the Asylum from 12th May 1879 till 9th March 1891, and on 11th September 1891 he was once more placed in the Asylum under an order of the Sheriff, and continued to be an inmate of the Asylum at the date of the action.

During the intervals when he was not confined in the Asylum he was an inmate of poorhouses for short periods. On one or two occasions he was sentenced to short terms of imprisonment for assaults. Occasionally he returned to his father's or mother's house, but never remained there long, and was entirely beyond their control.

Soon after the date at which William Crocket for the first time received parochial relief a claim was made by the parish of Montrose on the parish of Brechin for the relief granted to him, on the ground that he was at that date unforisfamiliated, and that his father having no residential settlement, the parish of the father's birth was liable.

By a letter dated 6th March 1877 sent by the Inspector of Poor of Brechin to the Inspector of Poor of Montrose, this claim was admitted by the parish of Brechin, and the advances made by the parish of Montrose on behalf of the said William Crocket were repaid by the parish of Brechin.

On 24th October 1895 the Inspector of Poor of Brechin gave notice in terms of section 71 of the Act 8 and 9 Vict. c. 83, and section 78 of the Act 20 and 21 Vict. c. 71, to the Inspector of Poor of Marykirk, that William Crocket had become chargeable to the pursuers, and claiming relief and repayment of charges incurred on his behalf. On 6th October 1897 a similar notice was given to the Inspector of Poor of Montrose. Both defenders denied liability.

The sums sued for were the amounts, with interest, disbursed by the pursuers on behalf of William Crocket from dates one year prior to the dates at which the statutory notices of claim were sent to the defenders respectively.

The pursuers pleaded—“(1) The said William Crocket having been born in the parish of Marykirk, the pursuers are entitled to decree against the Parish Council of that parish. (2) Or otherwise, the said William Crocket not having been forisfamiliated, and being of weak intellect, the pursuers are entitled to decree against the Parish Council of Montrose as the parish of his father's settlement.”

The defenders the Parish Council of Montrose pleaded, inter alia—“(2) The pursuers' predecessors having through their inspector of poor admitted liability to these defenders' predecessors for the relief of the said pauper on 6th March 1877, the pursuers are barred from insisting in the present action as against these defenders. (4) The pauper's father not having acquired a settlement in the parish of Montrose, these defenders are entitled to absolvitor from the conclusions of the summons with expenses.”

The defenders the Parish Council of Marykirk pleaded, inter alia—“(4) The said William Crocket, by reason of natural infirmity and accident, never having been capable of maintaining himself, and never having been forisfamiliated, had no settlement other than that of his father. (5) The said John Crocket and William Crocket having acquired a settlement in the parish of Montrose, which the latter has never lost, these defenders are entitled to absolvitor with expenses.”

On 10th June 1904 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Decerns against the defenders the Parish Council of the Parish of Montrose in terms of the first two petitory conclusions of the summons, with interest on the sum of £131, 19s. 7d. at the rate concluded for from the date of citation until payment: Further, decerns against the said defenders in terms of the last conclusion of the summons for relief: Assoilzies the defenders the Parish Council of the Parish of Marykirk from the conclusions of the summons so far as directed against them, and decerns.”

Opinion.—“The pauper in this case was born in the parish of Marykirk on 4th November 1862. He first received parochial relief from the parish of Montrose on 14th November 1876, and he has continued a pauper with some quite insignificant intervals ever since. On 14th November 1876 he was residing in family with his father, who was at that time, so far as the evidence goes, an able-bodied man, but the boy had, through an accident, lost his right hand and he had always been somewhat weak-minded. A claim for the relief thus afforded was made by Montrose on the parish of Brechin, which was the parish of the father's birth, and the claim was, by letter of 6th March 1877, admitted by Brechin, there being no doubt that the lad, though a few days over the age of fourteen, was

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still in point of fact resident with and dependent upon his father, and there being also no doubt that the father had not at that time acquired any residential settlement.

“On 11th April 1877 the lad was admitted to the Montrose Lunatic Asylum by order of the Sheriff, but he was discharged on 18th December 1877. On 12th May 1879, however, he was again certified as a lunatic and re-admitted to the Montrose Asylum, and once more, after an absence of only a few weeks, he was certified and re-admitted on 11th September 1891. He still remains an inmate of the asylum on the Sheriff's order of 1891.

“Now, the Lunacy Act of 1857, by section 75, provides ‘that every pauper lunatic detained in any district asylum under this Act shall be deemed and held to belong and be chargeable to the parish of the legal settlement of such lunatic at the time the order for his reception in such asylum was granted, and the expense of his maintenance at such district asylum shall be defrayed by such parish accordingly.’ I am not sure whether Montrose is, strictly speaking, a ‘district asylum,’ but that is of no consequence, because it is at all events a public asylum, and the case of Palmer v. Russell, 10 Macph. 185, decides that there is no distinction in respect of chargeability between a pauper lunatic in a district asylum and a pauper lunatic in any other lawful asylum to which the sheriff may have sent the lunatic. Accordingly the expense of liability for the expense of this pauper's maintenance since 11th September 1891 must depend on what was the parish of his legal settlement at that date.

“Now at that date there had been a change of circumstances from those existing on 6th March 1877, when the parish of Brechin made its formal and deliberate admission of liability. The change was this—John Crocket, the pauper's father, had, at Whitsunday 1877, completed the period necessary to give him a residential settlement in the parish of Montrose, and he had been admitted to the poors' roll of that parish on 15th August 1878. From that time onwards till his death in 1898 he retained his residential settlement, and was from time to time relieved by Montrose. Montrose now maintains, contrary to its own action at and subsequent to August 1878, that John Crocket, the father, never acquired a residential settlement. The contention is founded on the view that the relief afforded to the son on 14th November 1876 had the effect of pauperising the father, but that seems to me contrary to the decisions in Milne v. Henderson, 7 R. 317, and Milne v. Ross, 11 R. 273.

“If then there was a material change of circumstances after the time when Brechin made its formal admission of liability on 6th March 1877, I am of opinion that Brechin is not bound by that admission. I admit that in Beattie v. Arbuckle, 2 R. 330, Young v. Gow, 4 R. 448, and several other cases, it was decided that where one parish has deliberately admitted to another liability for the support of a pauper it cannot withdraw that admission and open up the question of liability on the ground that the admission was made in error either as to the facts or as to the law. But it is fully recognised in these cases that, although a deliberate admission must be treated as having been good when it was made, and therefore not to be gone back upon, circumstances may emerge to render it no longer binding. Thus Lord Gifford in Arbuckle's case says—‘If, then, the admission be binding, the only question that remains is, for how long? The answer is, at long as the pauper is chargeable and the circumstances remain the same.’ Here I do not proceed on the specialty that Montrose knew the fact of its having admitted John Crocket, the father, to the poors' roll, and did not communicate that fact to Brechin, because I do not impute mala fides to Montrose in thus failing to communicate a fact which it probably regarded as immaterial. It is enough, in my view, that there was a change of circumstances, and that Brechin was not to blame for not sooner discovering the change. The only effect of its not having been discovered earlier is greatly to limit the period for which Brechin can have recourse against Montrose. The disbursements for which repayment is sued date only from 6th October 1896, i.e., from one year preceding the written notice required by the statute. For these disbursements I think Montrose is liable.

“There is no case against Marykirk, because the pauper has never been self-supporting in the sense of the poor-law. He has always either been in receipt of relief or has lived (for very short periods) by begging. His settlement, therefore, has been all along derivative. It was the father's birth parish, viz., Brechin, till Whitsunday 1877, when the father acquired a residential settlement, viz., Montrose. As Brechin was liable at the date of the lunatic's first admission to the asylum on 11th April 1877, the 75th section of the Lunacy Act had the effect of continuing Brechin's liability till his discharge on 18th December in that year. But after that date, and particularly at the crucial date of his final admission on 11th September 1891, the liability lay no longer on the parish of the father's birth but on the parish of the father's residence.”

The defenders the Parish Council of Montrose reclaimed, and argued—(1) The father of the pauper had not acquired a settlement in Montrose at the time when relief was first given to his son in November 1876, and the giving of that relief to a son not forisfamiliated was in effect given to the father, who then became a pauper. Accordingly the father could not after that date acquire a derivative residential settlement in Montrose. The father was an invalid at the time and not able-bodied, and therefore was a proper object of parochial relief. This distinguished the present case from Milne v. Ross, Dec. 11, 1883, 11 R. 273, 21 S.L.R. 207; Milne v. Henderson and Smith, Dec. 3, 1879, 7 R. 317, 17 S.L.R. 197. Brechin being the father's birth settlement was accordingly liable. (2) Alternatively,

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the son William Crocket was the pauper. His chargeability went back to November 1876, and if he was then properly put on the roll as a pauper, the parish of Brechin, upon which he was originally a burden, must continue to bear the charge. There was no real break in the continuing pauperism of this man, so that there was nothing to bring the liability of Brechin to an end. Moreover, Brechin was bound by the letter dated 6th March 1877 sent by its Inspector of Poor admitting its liability. That was an admission deliberately made, and could not be withdrawn— Beattie v. Arbuckle, Jan. 15, 1875, 2 R. 330, 12 S.L.R. 210; Young v. Gow, Feb. 9, 1877, 4 R. 448, 14 S.L.R. 452. Reference was also made to Beattie v. Wood, Feb. 9, 1866, 4 Macph. 427, 1 S.L.R. 151; Beattie v. Adamson, Nov. 23, 1866, 5 Macph. 47, 3 S.L.R. 44; Campbell v. Deas, Nov. 14, 1893, 21 R. 64, 31 S.L.R. 82.

Argued for the pursuers and respondents—(1) The case was ruled by the decision in Milne v. Henderson and Smith, sup., which had been followed in Milne v. Ross, sup. These cases settled that relief given to a son who had never been able to maintain himself did not make the father, with whom he resided in family, a pauper when the father was able-bodied. Therefore John Crocket, the father of the pauper here, was not pauperised and rendered incapable of acquiring a residential settlement in Montrose by the relief given to the son in November 1876. The attempt to distinguish the present case on the ground that John Crocket, father of the pauper, was an “invalid,” and therefore not able-bodied in the sense of the poor law, failed on the facts, and further though at the time of the relief the father was in bad health, he was able to earn wages; and relief afforded in these circumstances did not bar the acquisition of a residential settlement— Jack v. Thom, December 14, 1860, 23 D. 173. (2) When the admission was made by Brechin it could not have been withheld, but the circumstances in which the admission was made had totally altered, and an admission made in one set of circumstances was not binding in a different set of circumstances.

Counsel for the defenders and respondents, the Parish Council of Marykirk, were not called on.

At advising—