Scottish Court of Session Decisions

This was an action raised by the Inspector of Poor of the parish of Annan against the Inspector of Poor of the parish of Cramond. The summons concluded for payment of £48, 7s. 2d., being the disbursements by the Parochial Board of Annan for the maintenance of Maria Farie, a pauper, during her confinement in the Southern Counties Lunatic Asylum, from 19th February 1874 to 16th February 1876, and thereafter for all the time that she should continue a lunatic and require parochial relief.

The circumstances of the case were as follows:

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—The pauper was born in 1853 in the parish of Selkirk, and ever since her birth had been an imbecile, and unable to do anything for her own support. Her father, Alexander Farie, was born in Cramond parish, was married at Dumfries, and after a residence of about five years at Annan died there on 19th December 1872. Farie acquired no residential settlement in Annan, as before going there he had applied for and obtained relief from Cramond Parochial Board, which relief was continued during his residence in Annan, and until his death. The pauper, after her father's death, lived with her mother in Annan till 19th February 1874, when she was removed to the said asylum. She was then twenty-one years of age. Due notice was given to the defender of her removal, and of his parish being held liable for her maintenance. The defender denied liability.

The pursuer pleaded—“(1) The parish of Cramond, as the parish of her father's birth, is liable for the pauper's support. (2) The parish of Cramond is bound to repay, as concluded for, the advances made by the parish of Annan on behalf of the pauper, and to relieve the parish of Annan of her future maintenance.”

The defender pleaded—“(1) The pauper having first become chargeable as a pauper at the age of twenty-one, and more than a year after her father's death, her parochial settlement is in the parish of her own birth, and not in that of her father's birth. (2) The pauper not having been born in Cramond, and not having any settlement in that parish, the defender should be assoilzied, with expenses.”

The Lord Ordinary pronounced, on 1st July 1876, the following interlocutor:—“Having considered the cause, decerns against the defender in terms of the conclusions of the libel: Finds the pursuer entitled to expenses.

“ Note.—The pauper when she became chargeable was twenty-one years of age. She was then in a state of extreme imbecility, and incapable of doing anything for her support. This has been her condition during all her life, for though it has not been proved that she is a congenital idiot, it is plain enough that her mental infirmity has existed from her earliest infancy.

Her father died in December 1872. At his death he had no residential settlement, and hence his settlement was in the parish of Cramond, where he was born.

“The pursuer maintains that the pauper's settlement is in Cramond, inasmuch as that was the settlement of her father at the time of his death. The defender admits that he would have been bound to support the pauper if at her father's death she had been in pupillarity. But he contends that, inasmuch as she was in majority at the time when she became chargeable, her settlement is in the parish of her own birth. His argument is, that in the absence of any residential settlement, original or derivative, every adult must have recourse to his own birth settlement; that the rule by which children retain their father's birth settlement was introduced in order to keep the family together, and can have no place as regards adult lunatics; and that though a lunatic may be looked upon as no more than a child when anything depends on choice, the law, by assigning every adult pauper to his own settlement, excludes all exercise of will, and therefore all analogy between a pupil and an adult lunatic.

“The Lord Ordinary has not been able to adopt the argument of the defender. He thinks that the reasoning on which the Court proceeded in the case of Craig, 8 Macph. 1172, applies equally to a pupil and a person in the position of this pauper. She has always remained in statu pupillari. She has never been sui juris, or in a condition to exercise any civil rights. On the contrary, she has been under a constant legal incapacity. The Lord Ordinary, therefore, is of opinion that the judgment of the Court in the case above mentioned rules the present. This appears to be in accordance with the view of the law taken by Lord Neaves as well as by the Court in Walker, 1 Macph. 893.”

The defender reclaimed.

Authorities cited— Craig v. Greig & M'Donald, July 18, 1863, 1 Macph. 1172; M'Crorie v. Cowan, March 7, 1862, 24 D. 723; Barbour v. Adamson, May 30, 1853, 1 Macq. App. 376 (and the Lord Chancellor there); Hopkins v. Ironside, Jan. 27, 1865, 3 Macph. 424; Walker v. Russell, June 24, 1870, 8 Macph. 893; Hay v. Paterson, July 29, 1857, 19 D. 332.

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