Scottish Court of Session Decisions

This was an appeal from the Steward-court of Kirkcudbright.

Page: 231↓

Knox, the inspector of the parish of Buittle, sued Hewat, the inspector of the parish of Kelton, for repayment of certain sums advanced by him “to Mary Johnston, daughter of and presently residing with William Johnston at Douganhill in the said parish of Buittle, who from age and infirmity is unable to support her, and the said Mary Johnston being from bad health a proper object for parochial relief,” and for relief from all future advances on account of the said pauper.

Kelton pleaded non-liability, in respect that (1) the said Mary Johnston was still living in family with her father, who was an able-bodied man, and neither she nor her father was a proper object of parochial relief; and (2) the house in which it was said a residential settlement had been acquired was situated in Buittle, and not in Kelton.

A proof was allowed to the parties, and the following facts were ascertained:—Mary Johnston was in 1867 aged 17; she had never been forisfamiliated; for some time she had been labouring under scrofula, which rendered her quite helpless; and her disease was of a permanent character. (It was mentioned that since this appeal was brought she had died.) The father was 67 years of age, and had been troubled with attacks of pleurisy occasionally for the last eight years. He could not work in wet weather, but when he did work he earned 20d. a day; for the last three years he had been able to earn on an average, 7s. a week, and he had not been a month altogether off work from sickness during that period. He had a wife and three other children living with him, and he had five other children from whom he got some assistance. But the state of his daughter Mary's health rendered it necessary that she should receive cordials and other things, the expense of which he was unable to defray.

On the other point, the proof showed that the parishes of Kelton and Buittle were divided by the Doach burn, and that that burn had since 1800 flowed on the Kelton side of the house in which the pauper lived; but there was also some evidence to prove that, betwixt 1795 and 1800, the course of the burn had been altered, and that previous to the alteration it had flowed on the Buittle side of the said house, or rather of the ground on which it has since been built. It farther appeared that, from 1843 to 1862 there had been a voluntary assessment, and since 1862 a legal assessment, for the poor in Buittle; and that, since 1838 there had been a legal assessment for the poor in Kelton; but these rates, as well as county and other rates, were all levied and paid on the footing that the subjects were in Buittle, and not in Kelton. The valuation roll was made up in the same way. It farther appeared that from 1822, when the house was built, until 1845, all births, deaths, and marriages taking place in it were registered as in Buittle, but since 1845, when some doubt was thrown upon the boundary by the publication of the Ordnance Survey, where it was described as “undefined,” some of these were registered in one parish and some in another.

The Steward-substitute found Kelton liable. He found, as matter of fact, “that the pauper Mary Johnston referred to in the record was, on 27th March 1867, in respect of the state of her health, a proper object of parochial relief in her own right, and has continued so ever since.” He also found that the pauper's house was in Kelton.

The Steward adhered.

The defender appealed.

Millar, Q.C., and Burnet, for the appellant, argued—(1) The proof shews that William Johnston, the father, was able to support himself; he was, therefore, an able-bodied man ( Jack v. Thom, 23 D. 173); (2) It is a presumptio juris et de jure that an able-bodied man is able to support his unforisfamiliated children ( M'Kay v. Baillie, 15 D. 974; Hay v. Thomson, 18 D. 532; Hay v. Paterson, 19 D. 339, per Lord Deas); (3) The child of an able-bodied man is not entitled to parochial relief ( Lindsay v. M'Tier, 1 Macq. 155); (4) Even assuming that William Johnston is not able-bodied, it is he and not his daughter who is the pauper; (5) The cases of Hay v. Paterson, 19 D. 332, and Beattie v. Adamson, 5 Macph. 47, relied on by the Steward-substitute, do not warrant his findings, because in both of these cases the parties expressly admitted that the child was itself a proper object of relief, and there is no such admission here. In the one case the child was in a lunatic asylum, and in the other it had been deserted; (6) On the other question, there is no proof that what has existed and been recognised as the boundary for more than 40 years was ever anything else.

Scott and Keir, for the pursuer, replied—(1) Whatever may be the law as to a pupil child, it is not the law of Scotland, that a child above puberty, and in a state of helplessness from bodily disease, cannot become an object of relief in its own right until forisfamiliation takes place. They founded on Lord Ivory's opinion in Hay v. Paterson. (2) The proof shews that the course of the Doach burn was altered betwixt 1795 and 1800.

At advising—