Scottish Court of Session Decisions

The Parish Council of Old Machar raised an action in the Sheriff Court at Aberdeen against the Parish Council of the City Parish of Aberdeen concluding for (1) repayment of certain sums expended by the pursuers on the maintenance of four pupil children of William Taylor, from and after 14th July 1910; and (2) relief of all future advances for the maintenance of the children.

The following narrative is taken from

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the opinion of Lord Dundas—“William Taylor, the father of the said children, was born in 1871, in the defenders' parish, but had, by residence in the pursuers' parish, acquired a settlement there prior to 1905. He married in 1894, but he and his wife, though they visited one another, did not live together, Taylor mainly residing with his mother in Old Machar, and his wife with her parents, latterly in the parish of Dyce. In October 1905 Mrs Taylor became insane, and was removed to the Aberdeen Royal Asylum. Dyce claimed and Old Machar admitted liability for her maintenance. In December 1905 the children, whose maternal grandfather had died, were granted relief by Dyce at the request of the grandmother, and Dyce claimed and the pursuers admitted liability for their maintenance. The pursuers called upon Taylor to make arrangements for the support of his children, and on his failure to do so, brought a complaint against him, to which, on 20th February 1906, he pleaded guilty in the Sheriff Court, and (not having paid the fine) went to prison for thirty days. All that the pursuers managed to recover towards payment of their advances for the children was a sum of £10, which was realised by the sale of some furniture belonging to Taylor's mother. The children were boarded out in the parishes of Dyce and Newmills, and the pursuers have had to pay these parishes for their maintenance. About May 1906 Taylor left Old Machar, and the pursuers' inspector did not trace his whereabouts until 9th July 1909, at which date he was living in the defenders' parish, where he had by that time acquired a residential settlement. On 14th July the pursuers intimated to the defenders that Taylor had lost his settlement in Old Machar, and called upon them for relief, as from that date, of the children's maintenance. The defenders disputed, and dispute, liability.”

The pursuers pleaded, inter alia—“(1) In respect the settlement of the said Maggie Jane Taylor, James Milne Taylor, Edward Alexander Taylor, and Mary Durno Taylor is that of their father the said William Taylor, who had prior to 14th July 1909 acquired a residential settlement in defenders' parish, the pursuers are entitled to decree as craved.”

The defenders pleaded, inter alia—“(3) In respect that the pursuers' parish is the parish of settlement of the said children, the pursuers remain liable to maintain the said children so long as they continue chargeable and are proper objects of parochial relief, and the defenders are entitled to absolvitor, with expenses. (4) Alternatively, the said William Taylor, being a pauper in respect of the relief afforded to his children, his settlement remains during chargeability as at the date of its commencement, and the pursuers accordingly remain liable for the maintenance of his said children so long as they continue to be proper objects of parochial relief, and the defenders are entitled to absolvitor with expenses. (5) Added by amendment—On the assumption that the said William Taylor was an able-bodied man, his children were not proper objects of parochial relief, and the defenders are not liable in repayment of the sums disbursed by the pursuers for the maintenance of the said children.”

The parties were in dispute as to whether Taylor was in 1905, and continued to be, an able-bodied man within the meaning of the poor law, and proof was allowed and led in regard thereto, the import of which was thus narrated in the opinion of Lord Dundas—“The proof discloses that Taylor was invalided home in 1901 from the South African war with a medal and three clasps, but a doctor on board ship allowed him to go home instead of to Netley Hospital when he landed. Then he worked for a time at Grandholm, getting 18s. a-week. Some years later he was medically passed for the militia, and served for about four years without a break until he was discharged in May 1909, when his conduct was certified as ‘very good.’ Taylor says that his plea of guilty in February 1906 was a mistake, and was given only because he could not get an agent to take up his case. At the proof he deponed—‘I have been residing in Aberdeen for some time. I have a house of my own, and have paid my poor rates, 2s. 11d. Since I have been in Aberdeen I have just been travelling about selling tea and doing work for farmers at odd times.’ As regards health, Dr Mitchell, who has known Taylor for sixteen years, says, ‘I don't remember of him being ever ill. I think he was always a healthy man.’ When Taylor was brought before the Sheriff early in 1906, Dr Mitchell examined him medically, and says, ‘At that time I had no doubt he was a man fit to maintain his children.’ As regards Taylor's account of his ailments in South Africa, including alleged sunstroke, Dr Mitchell states a distinct opinion that South Africa made no change or difference on him; that after his return he was ‘quite an able-bodied man’ and ‘quite an intelligent man,’ ‘fit for a normal man's day's work,’ but ‘very much indisposed to doing regular work.’ ‘I think he is a Weary Willie.’ ‘Apart from his laziness I consider that Taylor is a normally strong man, physically and mentally.’ The witnesses Hutcheon and Nelson, who have known Taylor for years, also say that his condition appears to have suffered no material change owing to his South African experiences, and that he was and is quite fit for the work of an able-bodied man. Mr Hutcheon states that when he got work for Taylor as a golf caddie about the end of 1905, the latter refused to do it. Taylor admits the work was got for him, but says he ‘could make nothing out of it.’ Against all this evidence there is only the opinion of two medical gentlemen who merely saw Taylor in 1909, and are disposed to put him down as neurasthenic. But their more or less theoretical opinions do not seem to be inconsistent with the facts above set out, and with Dr Mitchell's opinion pronounced with knowledge of the man. Thus Dr Robertson admits that in describing Taylor as not able-bodied he proceeds on the latter's ‘subjective symptoms,’

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and on the assumed truth of his own story, apart from which there was nothing which would have led him to the same conclusion.”

On 29th June 1910 the Sheriff-Substitute ( Henderson Begg) pronounced the following interlocutor—“ Finds in fact (1) that in the month of December 1905 the four pupil children of William Taylor mentioned on record became chargeable to the pursuers' parish in respect of the refusal of their said father to support them; (2) that Taylor was then an able-bodied man, with a residential settlement in the pursuers' parish, and that he has continued to be an able-bodied man; (3) that the pursuers prosecuted Taylor for having neglected to maintain his said children, and that they obtained a conviction against him on 20th February 1906; (4) that since December 1905 the pursuers have maintained the said children, having however recovered £10 out of a small estate to which Taylor succeeded in April 1906; and (5) that the pursuers now claim payment from the defenders of the sums expended on the maintenance of the said children since 14th July 1909, at which date the said William Taylor is alleged by the pursuers to have lost his residential settlement in their parish and acquired a settlement in the defenders' parish: Finds in law (1) that in December 1905 the said children had a derivative settlement, through their father, in the pursuers' parish; (2) that their settlement remained and remains the same during chargeability; and (3) that the pursuers thus remain liable for the maintenance of the said children while continuing to be proper objects of parochial relief: Therefore assoilzies the defenders.”

Note.—“In consequence of the mutual admissions of the parties, the proof has been practically narrowed down to the question whether Taylor has all along been an able-bodied man, and I think that I must answer this question in the affirmative. The only evidence for the defenders on this point is that of two doctors employed by them on 2nd September 1909 to examine Taylor, without any previous acquaintance with him. I prefer the evidence of Dr Mitchell, who has known Taylor for many years, and of Hutcheon and Nelson, who have known him for some years.

But, nevertheless, I am of opinion that the law is against the pursuers. Their procurator cited several Local Government Board Arbitrations, in which their view of the law was sustained, viz.— Fordyce v. Bellie, Poor Law Magazine for 1904, p. 46; Govan v. Sniszort, Poor Law Magazine for 1905, p. 31; and Kilsyth v. Cumbernauld, Poor Law Magazine for 1906, p. 147. But the opinions expressed by the arbiters in these cases have been over-ruled by the Court of Session in two subsequent cases, viz.— Paisley v. Row and Glasgow, S.C. 1908, p. 731, and Leith v. Aberdeen, S.C. 1910, p. 404. These cases seem to me to settle authoritatively that even a derivative settlement cannot be altered during chargeability. …”

The pursuers appealed, and argued—Till Taylor was discovered in July 1909 he was in desertion, for he was not accessible to the poor law authorities. During his desertion the children were entitled in their own right to relief from the pursuers' parish, where they had through their father a derivative settlement. In July 1909, however, Taylor had acquired a settlement in Aberdeen, for he had lived there for the requisite period; he was not pauperised by the relief afforded to his children, to the effect of preventing his acquiring a settlement; and he was, on the evidence, able-bodied, or at all events able to earn wages, and therefore not disqualified from acquiring a settlement— Jack v. Thom, December 14, 1860, 23 D. 173. In July 1909, therefore, when Taylor became accessible to the poor law authorities and could be forced to maintain his children, he was no longer in desertion, and the chargeability of the children in their own right ceased. The children therefore acquired their father's settlement in Aberdeen on his discovery, and any relief afforded them thereafter was not in respect of their own chargeability, and could be recovered from either Taylor himself or the defenders, in whose parish he had his settlement— Wallace v. Turnbull, March 20, 1872, 10 Macph. 675, 9 S.L.R. 417; Anderson v. Paterson, June 12, 1878, 5 R. 904, 15 S.L.R. 620; Hunter v. Henderson, December 22, 1894, 22 R. 331, 32 S.L.R. 169. There was nothing inconsistent in this with the cases relied on by the Sheriff-Substitute— Parish Council of Paisley v. Parish Councils of Row and Glasgow, 1908 S.C. 731, 45 S.L.R. 556, and Leith Parish Council v. Aberdeen Parish Council, 1910 S.C. 404, 47 S.L.R. 263—for in these cases the deserting husband or father was not discovered, and there was therefore no change of circumstances to interrupt the chargeability of the wife or children, and their settlement therefore could not change.

Argued for the defenders (respondents)—Taylor was not in any proper sense of the term able-bodied at any time from 1905 onwards, for he was labouring under disability to work so as to earn his subsistence— per L. J.C. Inglis in Jack v. Thom, cit.—or atleast so as to earn a subsistence for himself and his children— Knox v. Hewat, January 12, 1870, 8 Macph. 397, 7 S.L.R. 230. That being so, either Taylor or his children, or both, continued to be chargeable without interruption in July 1906, and there could therefore be no change of settlement then. Further, Taylor never was, properly speaking, in desertion at all. Had the pursuer's inspector made the search he ought to have done he would have found Taylor in 1906 as he did in July 1909. Then either Taylor would have been compelled to support his children, or he would have proved unable to support them, in which case the pursuer's parish, as the parish of his and their then settlement, would have had to afford relief, and there could have been no change of settlement. On the other hand, if it was held that Taylor was in desertion until 1909, and was able-bodied all along, then on his discovery in July 1909 his children

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ceased to be proper objects of relief, and any sums expended thereafter for the relief of either himself or his children were improperly expended— M'William v. Adams, 1852, 1 Macq. 120; Lindsay v. M'Tear, 1852, 1 Macq. 155; Jack v. Isdale, February 12, 1866, 4 Macph. (H.L.) 1, 1 S.L.R. 156. On this view it was the duty of the pursuers when they discovered Taylor in July 1909 to take the requisite steps to enforce his liability to support his children— per L.P. Inglis in Anderson v. Paterson, cit.—and if the pursuers did not do that, but improperly expended sums in the relief of the children, they could not recover from the defenders. The cases relied on by the pursuers did not support their argument. In Hunter v. Henderson, cit., the man was not able-bodied, or the result would have been different— per Lord Rutherfurd Clark at p. 334. Wallace v. Turnbull, cit., was inconsistent therewith.

At advising—