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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nixon (Inspector of Port-Glasgow) v. Rowand (Inspector of Burgh Parish of Paisley) [1887] ScotLR 25_175 (20 December 1887) URL: http://www.bailii.org/scot/cases/ScotCS/1887/25SLR0175.html Cite as: [1887] SLR 25_175, [1887] ScotLR 25_175 |
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Page: 175↓
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A pauper became chargeable after attaining the age of puberty, who had been deserted by her father, and whose mother was dead. She was of weak mind. Held, upon the evidence, following the case of Cassels v. Somerville, 12 R. 1155, that the state of her mind was not such as to render her incapable of acquiring a settlement in her own right; and, following the cases of Greig v. Greig and Macdonald, 1 Macph. 1172, and M'Lennan v. Waite, 10 Macph. 908, that as she had not acquired a residential settlement in her own right, her settlement was in the parish of her birth, in preference to any derivative settlement she might have had previously.
Bridget Tonner, a pauper, was relieved by the Inspector of Poor of Port-Glasgow in 1879. This was an action of relief at his instance against the Burgh Parish of Paisley, where the pauper was born. The date of her birth was 16th May 1863. Her mother died in May 1879. Her father was an Irishman, who had deserted his wife and child in 1864, but had returned to live with them in 1878, and again deserted his child upon the death of his wife. Between 1864 and 1879 the pauper lived with her mother in Port-Glasgow.
It was admitted in the case that the pauper had not acquired a residential settlement in her own right when she first became chargeable.
The two points maintained by the defender were—1st, that she had a derivative settlement in Port-Glasgow through her mother; and 2nd, that by reason of mental weakness she was incapable of acquiring a settlement in her own right, and that her settlement was therefore that of her father, which was not in Scotland.
With regard to the 2nd point, the evidence led before the Lord Ordinary was to this effect—Dr Clouston deponed that he found the pauper to be, not an idiot, but a congenital imbecile of a marked type, and that he did not think she was fit to do anything to earn her livelihood. Dr Little john stated that she Was an imbecile, and unable to do anything for her own subsistence—mentally and physically imbecile. Dr Taylor, one of the parochial surgeons in Port-Glasgow, said he found she understood what he said to her, and could give tolerably intelligent replies to his questions, and that she had evidently had no education. “I saw no physical appearances to lead me to class her as a congenital imbecile. I had no difficulty in advising the board that she was a proper object to be received into the ordinary wards of the poorhouse. I had no difficulty in certifying that she was not a lunatic, insane, an idiot, or of unsound mind, all of which questions we have to answer Yes or No. At the same time I was obliged to say she was weak in her intellect, but that is not sufficient to render her incapable of working.” Dr Leslie, medical officer to the Scottish National Institution for the Education of Imbecile Children at Larbert, deponed that he had examined the pauper, and that his opinion was that she was “feeble-minded, but nothing approaching an idiot;” that she could count up to three, and that he did not see why she could not be taught more if under proper tuition.
The Lord Ordinary (
“ Note.—It is admitted that the pauper had not acquired a residential settlement in her own right when she first became chargeable.
But it is said that she had a derivative settlement in Port-Glasgow through her mother. The mother died in May 1879, when the pauper was sixteen years of age, and the father, who had deserted his wife and child in 1864, but had returned in 1878, and bad been living in family with them in Port-Glasgow, again deserted his child upon the death of his wife, and has not since been heard of. When the pauper first became chargeable therefore she had attained the age of puberty. Her mother had died, and she had been deserted by her father. In these circumstances
Page: 176↓
It is said that by reason of her mental weakness she was incapable of acquiring a settlement in her own right, and must therefore take the settlement of her father, which is not in Scotland. I think the case of Cassels v. Somerville, 12 R. 1155, is conclusive upon that point. That decision, as I understand it, establishes a general rule which, in the common interest of all parishes, ought not to be departed from except upon grounds of distinction much more substantial than any that can be found in the circumstances of the present case.”
The defender reclaimed, and argued—The pauper was a congenital imbecile, i.e., a perpetual pupil. In such a case the settlement was in the birth parish of the father, which here was not in Scotland. In Cassels' case, referred to by the Lord Ordinary, the pauper was more intelligent than in this case— Milne v. Ross, December 11, 1883, 11 R. 273; M'Currie v. Cowan, March 7, 1862, 24 D. 723; Hay v. Skene, June 13, 1850, 12 D. 1019; Greig v. Young, June 21, 1878, 6 R. 977; Caldwell v. Dempster, July 20, 1883, 10 R. 1263; Lawson v. Gunn, November 21, 1876, 4 R. 151; Milne v. Henderson and Smith, December 3, 1879, 7 R. 317; Watson v. Caie and Macdonald, November 19, 1878, 6 R. 203.
The pursuer argued—This case could not be distinguished from Cassels. It was only an idiot who could not acquire a settlement in her own right, and the pauper here was not an idiot.
The Court, without delivering opinions, adhered.
Counsel for the Defender and Reclaimer— M'Kechnie— J. Clark. Agent— D. Lister Shand, W.S.
Counsel for the Pursuer and Respondent— D.-F.Mackintosh— Wallace. Agent— Adam Shiell, S.S.C.
