Dundee Society in the 19th Century

19th Century - The Sheriff Court and Dealings
Regarding the Poor.

From the Poor Law Magazine for Scotland 1838 to 1868

P. 320 - ARBITRATION CASES

A. Murray Dunlop, Esq., Advocate

William McKenzie, Inspector of Liff and Benvie - Caliment.
George Greig, Inspector, Edinburgh - Respondent.

Derivative Settlement - Retention, - A boy resided in a parish with his mother for seven years continuously, prior to his being seventeen years of age. During a period of thirteen years subsequent thereto, he resided one year in every five years in that parish, when he deserted his wife and family, leaving them chargeable as paupers.  On a question as to their settlement. Held that he had acquired a settlement by his seven years residence, although so large a portion was during his minority, he then being domiciled with his only surviving parent, and that that settlement was liable for maintenance of his wife and family.
The facts of this case, are submitted to the learned Arbiter are shortly as follows: -
Susan Bennet or Simpson and family became chargeable to the united parish of Liff and Benvie, in December 1858, she having been deserted by her husband, Alexander Simpson.  Claim was made on the parish of Edinburgh, as the parish of the birth of her husband. Edinburgh refused on the ground that the said Alexander Simpson had, when about ten years of age, removed to Liff and Benvie with his mother, his then only surviving parent, and resided therein along with her for a period of seven years, and had thus acquired a residential settlement therein, and that since then he had returned and resided in Liff and Benvie one year of out of every subsequent five years, so that the settlement formerly acquired was still retained.
On this statement the Arbiter pronounced the following finding: -
Edinburgh, December, 1859-- I find the residence of Alexander Simpson’s mother, after the death of her husband, for the period  of about seven years, in the parish of Liff and Benvie, he then being a minor, and living in family with her, acquired for him a residential settlement in that parish, which he held in July, 1845,when he first removed therefrom; and I further find that the settlement was retained by him in December, 1858, when his wife and children became chargeable, and then the claim of relief was made on Edinburgh by Liff and Benvie inasmuch as no period of five years elapsed from July 1845, to that Date without Alexander Simpson having resided a year in the parish of Liff and Benvie; - and I therefore assoilizies the Inspector of Edinburgh from the claim on the part of the Inspector of Liff and Benvie, but find no expenses due and decern.
(Signed) A. Murray Dunlop

Henry Jack, Inspector of Poor - Pursuer
John Ross, lunatic, and James David Grant, his Curator Bonis. - Defender
Poor - Parochial Relief - Reimbursement, - A person who had sought and obtained Parochial Relief, having succeeded afterwards to both heritable and moveable property - Held that the parish had no claim, and that neither the pauper nor his estate were bound to repay the parish the advance made previous to his having fallen heir to property.
The parish of Dundee afforded relief to the lunatic and the account showing it was expressed as follows: -

The pursuer, as Inspector of the Poor of Dundee parish on the 14th of February, 1859, raised a summons, linelling on a copy of the said account and narrating that the advances were made “under special conditions and arrangements” and concluding for payment.  A condescendence was afterwards lodged emplyfing the pursuer’s case.  Defences were put in with a plea in law expressed as follows; - “The relief afforded to John Ross having been given strictly as Parochial relief, and no obligation having been taken rot its repayment, no action is now maintainable for the same, and the defenders are entitled to abcolvitor, with expenses” The record having been closed, an oral debate ensued, first before the Sheriff-Substitute and the Sheriff.  The precedent alluded to and Quoted in the sheriff’s note was pressed by the defender’s agent on the attention of the sheriff-Substitute, but without any effect, and it was again made use of before the sheriff with better results, as the final judgment shows.

The Sheriff-Substitute’s judgment was this: -
Dundee 7th june,1859, - The sheriff-Substitute, having heard parties’ procurators orally on the closed record, whole process, and made avizandum with the debate, Finds it admitted that the defender, John Ross having become in poor circumstances, was alimented by the parochial Board of the parish of Dundee, and that it is not disputed that the amount of said ailment while so supported in the sum sued for:  Finds that the said John Ross who was supported had a brother named Robert Ross who resided in Perth and who left some heritable property, to one half of which pro indiviso the said John Ross became entitled: Finds further, that it is admitted in the defence that John Ross’s share of his brother Robert’s movable property amount to £100 1s 6d: finds it also admitted in the defence that the whole funds belonging to John Ross now in the hands of his curator bonis, Mr. Grant, the other defender amounts to about £63: Finds such circumstances, the means  and effects of John Ross, and to which he has succeeded by the death of his brother, is liable in relief to the parochial Board for the ailment advanced to him when a pauper, being £31.7s.7d. As set forth in the libel: Finds that the admitted sum in the hands of the curator being more than sufficient to discharge the advances of the Parochial Board, there is no good defence against decree being pronounced for said advances. Repels therefore the pleas maintained in defence, and decerns against the defender, John Ross, and also against his curator bonis James David Grant Qua curator, for £31-7s 7d sterling, and interest, in terms of the conclusions of the libel; Finds the pursuer entitled to expenses, allows and account thereof to be given in, and remits the same when lodged to the auditor for taxation and report.            
(signed) John I Henderson    

The defenders appealed, and got a reversal.

Edinburgh, 2nd November, 1859, - The Sheriff heard parties’ procurators on the defenders appeal, having made avizandum with the debate, and having considered the closed record and whole cause: For the reasons set forth in the note appended Sustains the said appeal and Recalls the interlocutor appealed against: Sustains the defences; and, subject to the declaration after stated, assoilizies the defender entitled to expenses whereof allows an account to be given in; and results the same when lodged to the auditor to tax and report.  It being declared, that, inasmuch as the defender of the lunatic for the period between the ascertainment by the pursuer that the lunatic had succeeded to means and his own appointment as curator binis, it shall be in the power of the Sheriff-Substitute to ascertain from the parties the amount of the ailment thus payable by the pursuer, and, if required by him to do so, to pronounce decree therefore.
(signed) A.S. Logan       

Note. --In this case the parochial Board of the parish of Dundee seek to recover, from the defender the sum of £1-7s-7d, disbursed by the Board in supporting Ross between 4th august 1855 and 13th March 1858. The ground of the claim is, that around December 1857, Ross succeeded to certain property, which to the extent of £68, is admittedly in the defenders hands.  The defence to the claim is that the sum sued for having been given in relief of a destitute and disabled pauper, who was in law entitled to receive it, and no obligation for its repayment when given having been taken, the claim now made is unfounded.  The sheriff is of the opinion that the defence is good and ought to be sustained. In Henderson v Alexander, 18th July 1857 (29th Jurist, 559), Lord Ardmillan decided that an action was not maintainable against a pauper, who, after having been in receipt of parochial aid, had succeeded to considerable means.  Now, though this decision, as being only the judgment of a single Judge, in the Outer house, and not brought under revies, is not binding as an authority: Still, in so far as it regards and deals with the payment of parochial relief as a payment which does not in and of itself authorize an action for its recovery from the payee on the mere ground of his actual ability to repay, the sheriff considers it as a sound exposition of the law of Scotland, on which he feels himself bound to acr. He believes that the reason why his Lordship’s judgment was not reclaimed against the conviction of its soundness by the parties to whom it was adverse; and he has also reason to know that it has since its date practically regulated many cases.

Accordingly, what the present pursuer chiefly relics on is, that the advances now sued for were originally mad on the understanding that, should the recipient ever became possessed of means, these advances should be repaid; and the grounds on which he supports his contention are these;--It is practice of the Board which the pursuer represents not to give permanent relief to any applicant until he has answered certain questions, and subscribed a certain declaration is - ”Supposing the Board should agree to sustain your application are you willing to subscribe the annexed declaration. Bequeathing all you may have at the time of your death to the parish, in repayment of what they may now or hereafter advance to you” In the paper contains the questions, and spaces for the relative answers, there is given a form of the declaration thus referred to.   It is as follows: - I, the before named, do declare that the written answers above inserted to each of the following printed questions are all true; that I have kept back no part of the truth, but have stated my whole circumstances to the best of my knowledge and ability,  farther, I hereby oblige myself and my heirs to refund and pay back the amount or value of what I may receive, or that may be expended for my support, as such shall be paid and ascertained by the Inspector of the Poor of the parish for the time; and further, in the event of my death, I legate and bequeath to Henry Jack, Inspector foresaid, and his successors in office, for behoof of the Parochial Board of said parish. All moveable property which may belong to me at the time of my death; and I nominate and appoint the Inspector of said parish for the time by sole executor and universal legatory, but only to the effect of being refunded of all sums of allowances advanced or laid out by him for me, as foresaid, and of any expense they may put to in recovering the same. In witness whereof I subscribe this declaration , written, on so far as the same is not printed, by, Inspector of the Poor for the parish of Dundee, at Dundee the  day of, 1850, dispensing with witnesses to my subscription hereto, and all other statuary of legal obligations to the validity of these presents competent to me,” Now is the present case, though in the application for John Ross the question quoted was answered affirmatively, “Yes,” the declaration also quoted was not subscribed either by Ross or by anyone else. The reason for him is apparent when it is seen (as it is seen) from other parts of the document that the infirmity, which necessitated the application for parish aid, was the mental wealness, rather the insanity of the applicant.  In this state of matters it will not do for the pursuer now to contend that, but for the belief of the Board that they had thus acquired a good claim of whatever Ross might subsequently come to possess, they would not have granted the application. The true question is, did they of did they not acquire a title, under which they can now enforce a claim for repayment there advances against the legal custodian of the property since acquired by the pauper; and the answer is easy.  They did not, and from his state of mind at the time they could not do so.  So standing matters, there is nothing to exclude the operation of the rule deduced by Lord Ardmillam in the case of Henderson v. Alexander.  No doubt at the debate the Sheriff was pressed for the pursuer by the supposed authority of Mr. Dunlop, who is his treatise on the Poor law (p. 75, new Ed.), express himself thus: - ” Where a parish has ailiment an individual having some property of his own, without taking from him a conveyance thereto, they cannot, after his death. Have recourse upon hi property, except in the case of a factous person, who can grant no conveyance “.

In earlier edition of the same work the learned author has the following text, which, however, was not quoted before the Sheriff, Though in its terms still more favorable to the pursuer;--” In the case of an idiot possessed of some little property, it would seem that the parish are bound to support him, and on the other hand, are entitled to use for this purpose the property belonging to him, or to have recourse on it after his death.  In support of their dicta, Mr. Dunlop refers only to one decided case, Mclachlan v Kirk, Session of Stevenson, 25th Jan. 1828, 6 S. & D 443.  The report of that case, however, contains not the slightest reference to the matter in support of which the case appears to have been cited.  What it decides, and it neither decides nor even deals with anything more, is that the Kirk Session of Parochial Board, which has supported a pauper during life, has, without a conveyande omnium bonorum from him, no preferable claim on his heritable property after his decease.  Had the present pauper been sane, and had he subscribed the ordinary declaration required by the Parochial Board, the pursuers would clearly have been entitled to decree.  As it is, however, the defender must be assoilized, as any other decision would be necessarily involve the absurdity--that an incapacity to give a valid consent is equivalent to a valid consent having bee actually given
A.S.L.                     

The Inspector of Poor, Dundee - Pursuer
The Inspector of Poor, Tannadice - Defender   
Seaman - Settlement by Residence – Absence - Circumstances in which Held that a seaman following his usual avocation lost a residential settlement previously acquired by him, although his wife resided during part of his absence in the said parish.
Mora – Abandonment - Circumstances which Held that these pleas did not apply.
George Valentine, a seaman with his wife, Magdalene Scott or Valentine, and children, came to Dundee about the year 1835. He rented a house in various parts of that parish, his wife and family resided, and himself with them when not at sea.  He had in this way acquired a residential settlement in Dundee prior to Whitsunday, 1844 A Few months before that term he went to command a trading vessel belonging to Aberdeen, between that port and London, and in March 1844, his wife followed him.  At this time, they gave up the house in Dundee, and the furniture was sold by the landlord for rent.  The children, except the youngest, had in the meantime been married.  Valentine and his wife remained in Aberdeen for a year; the wife returned to her father’s house in Dundee two months before Whitsunday, 1845. Valentine followed at Whitsunday, and they took a house at the west end of the town of Dundee, but situated in the parish of Liff and Benvie, Valentine went to sea in a vessel belonging to Perth, and while they rented the house in Liff parish, they disputed, and Valentine left her, stating that he would not afterwards own her.  Valentine was a sea in different vessels after this, but did not come to Dundee until the summer or autumn of 1848, when he was a few months in his daughter’s house in Dundee, and they went again with his ship. He did not return for two years after this, and thereafter he came generally to Dundee in the winter until his death, but for a very short period.  He died in the Baltic in 1855.

After Valentine left his wife in Liff Parish, she removes at WhitSunday, 1846, into Dundee parish, where she lived for some months, and was then found to be insane, and placed in an asylum in Dundee, her board there being defrayed by her relatives and the husband.  After being eleven months in the asylum, she was liberated, but was often in a state of intoxication or mental excitedment and frequently in the Police Office and Prison, accused of disorderly conduct.  When not there, she lived in a furnished room or lodgings in various places of the parish and was about eighteen months in the Reformatory in Liff parish. No application was made to the parish for relief till April, 1851.  Her husband defrayed, or contributed to her support through her friends, until that period.  In 1852, she was sent to an asylum by the Parochial Board of Dundee and has been more or less confined in an asylum, at the parish expense, since.  At the date of the first chargeability, in 1851, Dundee sent a statutory notice to Tannadice, the parish of her husband’s birth, and a correspondence followed between Inspectors, the one insisting on the claim, and the other refusing; this correspondence ceased in October 1851.  Nothing further was done in it until 1858, when the Dundee Board instructed their agent to have the settlement declared, and after some correspondence the action was raised for advances since 1851, and the future relief of the pauper.

The sheriff-Substitute (Ogilvy) pronounced this decision: -
Forfar 22nd March. 1860.--The sheriff - Substitute having taken the proof, heard parties procurators thereon and made Avizandum; Finds that the pursuer has been affording parochial relief to the pauper, Mrs. Valentine, since April, 1851; finds that at March. 1844. The said pauper had, in virtue of her husband’s previous residence for more than five years, acquired settlement in the parish of Dundee; Finds that she and her husband, who was a sailor, then left Dundee parish. And that her husband did not reside therein again till the month of June or July 1848.when being with his ship in Dundee Harbour, he took ill and lived with his married daughter in the said parish. Finds that by said absence, extending over a period of more than four years, the pauper’s husband, and consequently the pauper herself, lost the residential settlement they had previously acquired; Finds, that up to April, 1851. The pauper’s husband had not acquired a new settlement by residence, nor had he done so even up to the period of his death at Riga in 1855; Finds, that the defender’s parish, which is admitted to be the parish of the husband’s birth settlement, is liable for the future aliment of the said pauper; Finds, that in the circumstances of this case, the claim of the pursuer’s payment of future advances is not barred by acquiescence or more, and appoints the case to be enrolled for further procedure.
(Signed) G. Ramsay Ogilvy.      

Note: - The first point to be determined here is, whether the pauper’s husband
Lost, by non-residence, the settlement he had once acquired in Dundee parish, the facts are really not disputed.  He left that parish before March 1844. Then in command of an Aberdeen trader, and his wife, in that month, left Dundee to live in Aberdeen.  She and her husband came back to Dundee in 1845, but on that occasion, they lived in the parish of Liff and Benvie, where had a house from May, 1845 to May, 1846.  It was during this period that a quarrel occurred, probably caused by the pauper’s intemperate habits, and, as she herself says “her husband left her” It is certain they never lived together again.  The husband went to sea and remained away for 18 months, not returning till June or July 1848. It is therefore clear that, so far as his usual residence is concerned, he was more than four years absent from Dundee. What the defender finds on as to his retaining his acquired settlement there, is the pauper’s own residence.

After the quarrel in the winter 1845-1846, the husband, though he went to sea, left his wife his half pay, and in May 1846. She left her house in Liff and Benvie parish and lived from May to October in Dundee parish. Thereafter she was 11 months in the Montrose Asylum, or till September 1847. After which she continued to remain in Dundee parish, living with her mother, and with a person of the name of Dorrit till Oct 1848.  The defender contended that, as there had been no judicial separation between the spouses, and as the husband had been paying his wife all the time during which he was pursuing his proper avocation as a sailor, and had not set up a residence anywhere else. Her residence must be held as his. No doubt a great deal of ingenious argument may be raised in regard to this question on both sides, but in the face of the recent decisions of the Second Decision on the cases of Aberdeen Inspector v. Watt      15th Dec, 1858, and Inspector of Knocked v Rothes and Aberlour 7th Mar, 1860 it would certainly be a strong thing to hold that there could be residence to, the effect of keeping up a settlement where the party actually did not reside, nor had any intention so to do.  There is here neither the fact nor the animus resudenti, had Valentine merely gone to sea in the usual way in 1846. Leaving his wife and family to reside in Dundee, with the intention of joining them as soon as he returned, the case would have been different; and even though, if on his return, from circumstances which had occurred on his absence, he had declined to live with in family with his wife again, still the intervening period might have been held constructively as a residence, to the effect of preserving his previously acquired settlement. But it is unnecessary to speculate on what may be law in regard to another state of fact. Here it seem clear that wife’s residence from Set., 1847 to Oct., 1848 cannot be held to be her husband’s residence any more that her residence for the previous eleven months in the Montrose Asylum and that is sufficient for the disposal of this case

There is still remaining the difficult and important question of the effect of the defender’s plea of more in regard to the arrears, and as to the amount of said arrears, but, as was arranged at the debate, these questions are reserved until the settlement be fixed.
(Initialed) G.R.O.             

The defenders appealed to the Sheriff, and an able claiming Petition was given in, drawn by Council, which was ordered by the pursuer. Sheriff Logan has now pronounced his decision, adhering to that of the sheriff-Substitute as follows: -
“Edinburgh, 12th June 1860 - The Sheriff considered the reclaiming petition for the defender in support of his appeal with the answers Thereto for the pursuer, and having also considered the closed record, proof, and whole cause, dismisses the said appeal, and adheres to the interlocutor appealed against    
(Signed) “A.S. Logan “

“Note: - the case is important to the contending parishes, and as such it has been carefully considered. At the same time, agreeing so fully as he does with all the finding of fact so correctly deduced, and all the legal views so accurately stated by the sheriff-Substitute in his interlocutor and note, the sheriff finds it unnecessary to add anything either in the way of explanation or corroboration. Accordingly, he will merely advert to two matters strongly insisted on by the defender in his reclaiming petition, and by that paper introduced into the cause for the first time.”1. He there contends that the pursuer’s claim of relief, as regards the future as well as past aliment, must be held as fallen by reason of having been abandoned by the pursuer.  Now, it is quite true that such a plea as abandonment is a thing known to the law; but it is difficult to admit its applicability to a case where the parish affording aid to a pauper justly chargeable on the parish by which it seeks to be relieved, is able to show that, straightway on chargeability occurring, The statutory notice was duly sent and received, and the claim immediately thereafter insisted on much persistency

And after a full communication of facts.  No doubt the claim, in the present instance was for a considerable intervening  period not actually presented; but the institution and dependence of this action, as well as the renewed correspondence between the parties which immediately preceded it, show conclusively that the claim made in the action neither was abandoned by the pursuer, nor regarded as abandoned by the defender,       
“2. Great stress likewise is laud on the recent case of Greig v Carsend Waite, 24th Feb, 1860; wherein it was decided by the Court of Session that a widow, who having had a settlement in the parish of her husband’s residence at the time of her death, subsequently loses it by non-residence without having acquired another, has by her settlement in the parish of her own birth and not within the parish of birth of her husband. But the peculiar facts which appear from a mere statement of the matter thus decided clearly show how inapplicable the rule laid down by the decision in to the facts of the present case. Here the wife deserted by her husband years before her widowhood, received parochial relief from the pursuer’s parish, ever since which time she has continued to be a pauper. The parish of settlement of the husband at the moment of chargeability was the parish which was liable to support her, and this liability not having been displaced by anything which has occurred since, necessarily continues still to exist.
(Init.)  “A.S.L. “  

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Iain D. McIntosh, 2023