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

SHERIFF COURTS - FORFARSHIRE DUNDEE

FORFARSHIRE - DUNDEE

Sheriff Guthrie Smith

A McDonald, Rutherglen,--Pursuer

David Hill, Dundee---Defender

Maintenance of Child---Father’s liability to repay,--Circumstances to which Held that the father of a lawful child was not bound to repay his father-in-law for the maintenance of the child.

The facts and law of this case are fully and clearly stated in the following interlocutor and the note issued by the Sheriff--Substitute;--

Dundee,9^th December, 1868,--The sheriff-Substitute finds that the defender David Hill was married to Margaret McDonald, a daughter of the pursuer, at Glasgow, on 2^nd January, 1864; that of this marriage a child was born on 9^th May following, and that thereafter in the month of October defenders daughter’s wife left him and went home to her father’s in Rutherglen, taking the child with her; Finds that at the time of this separation the defender was out of work, and for that for some time previous his wife had been to a large extent indebted for the means of subsistence to her father, the ,pursuer, and her sister, Mrs Findlay; Finds that the pursuer alimented the child from the time of the said separation down to the month of June last, when the defender having in vain repeatedly and earnestly entreated his wife to rejoin him in Dundee, where he had been for some time in good employment, went to Rutherglen and took it away; Finds in point of law, that as it is not proved that the defender deserted his wife, or agreed to separate from her, and there is no evidence that the aliment furnished by the pursuer to his grandchild was so furnished under the arrangement between him and the defender, the same must be presumed to have been supplied ex pietate parentale. Therefore, assoilizies of the action. Finds the pursuer liable in £6 10s. Sterling of expenses, being £1 10s of procurator’s fee allowed by statute, and £5 sterling of outlay, got which decerns against him

(Signed) J. Guthrie smith

Note.--In the circumstances in which this claim is preferred, it assumes a very different colour from what it might have presented had the action been instance of a stranger. The pursuer is the grandfather of the child in question, the defender is his father. At common law, the pursuer, failing the defender, is liable subsidiere to maintain the infant; and it is well settled by a seties of cases, some of very ancient date, that when and action for the repetition of the expense of maintaining a pupil is raised by the relations liable second against the relation liable at first, on the ground that, by the latter’s, failure, the duty of maintenance had developed on the former, it os incumbent on him to prove either that the party charged deserted the child and abandoned it to be charity of strangers, or that the two persons had entered into an express bargain on the subject. In the absence of any evidence to this effect, the ailment is presumed to have been rendered ex pietate, and the presumption endures till the person primarily liable--e.g., its own father--is formally called on to make some prevision for its support. The case of Ludquhairn v Gight the date of which is 1665 (M.11,425), is a good example of the principle stated. The report bears---”The Laird of Gight having married Ludquhairn’s daughter, who remained in her father’s family, and brought forth a bairn to Gight, and died, Ludquhairn, the child’s guidsire , kept her in his family several years and now ursues Gight for her aliment; show alleged absolivitor because the pursuer, never having required a promise of this aliment, now desired the defender to take home his daughter, it must be presumed that the pursuer did it animo donandi for his own oye.. The Lords found the defence relevant for all years preceding the intenting of this case “So in Gordon v Leslie, June 11, 1680 (M, 11,426,) was an action by a grandfather against the father of the child alimented. The Lords found this defence relevant, that aliment to a grandchild being presumed to be given ex pietate, “and expenses were due for aliment, except there had been a action to the contrary” The cases of Barclay v Berry 4 Br. Sup. 491 and McLean v. Holyands, 4 Br Sup., 487, are to the same effect and so lately as the 27^th June last it was decided by Lord Barcaple in the case of Bell v. Baillie (unreported), in a n interlocutor which was subsequently acquiesced in by the parties that a man was not liable to repay his mother-in-law sums expended on her in the support of his wife and child except it were proved that the husband had deserted his wife, or that her absence from him was “necessary and justifiable”

In this case the pursuer has wholly failed to prove that his daughter’s separation from her husband was what the law calls justifiable. There was no ill-usage of any kind. On the contrary, he appears from his letters to have entertained for his wife and child feelings of very deep affection. He was no doubt very ill-off, and out of work. but, so far from being a ground for a wife leaving her husband, it is the very opposite, seeing that is when a man is overwhelmed in difficulties that, if she be a woman of proper feeling and right principle she may prove of the greatest service. In any view, nothing could justify the prolonged absence of Mrs, Hill from her husband, and if she had done her duty, she would have rejoined him when he had obtained permanent employment in Dundee.

(Intld.) J.G.S.

FORFARSHIRE-----DUNDEE

Mr Sheriff Guthrie Smith

John Palmer, Inspector, Stirling--Pursuer

Henry Jack, Dundee--Defender

Residential settlement--Loss by Absence--- Circumstances in which held that an acquired settlement had been lost through non-residence.

The facts are fully detailed in the following Interlocutor and Note--

“The Sheriff-Substitute having heard parties’ procurators’ , finds that it is admitted by the defender that the pauper John Crabb, who was born in this parish of Dundee and in 1848 had acquired a settlement in Stirling, was absent from the latter parish from December, 1848, to July, 1853; that during said absence he was engaged in the prosecution of his business as a maker and seller of baskets, and from then time to time remitted small sums of money to his wife, who continued to reside in Stirling till his return in 1853; That the said John Crabb became chargeable as a pauper first in August, 1853, and again in November 1864, at which date if farther admitted that the settlement which he had acquired in Stirling had been lost by his foresaid absence, if certain advances made to his wife by the Parochial Board during said period did not stop the running of the statutory terms; Finds that as it is not averred by the defender that at the time when said advances were made the said John Crabb had deserted his wife, or that he had ceased to be an able-bodied man, it must be held that at the date thereof she was not a proper object of parochial relief; Therefore find in law that. Notwithstanding said advances, the pauper’s settlement in Stirling was lost, and that Dundee, as the parish of his birth, is bound to relieve the parish of Stirling of the advances made to the said John Crabb, amounting, at November 11, 1869, to £32,7s 11d., and of all further advances which may have since been made; Therefore repels the defences; decerns in terms of the conclusions of the summons; Finds the defender, liable in expenses, allows an account thereof to be given in, and remits the same, when lodged, to the Auditor of Court to tax and report.

(Signed) J. GUTHRIE SMITH

“Note: - It appears to the sheriff-Substitute that this case is governed By the case of Jack v. Thom, 14^th December, 1860, where it was decided that the receipt of relief by a person not entitled to receive it did not prevent the acquisition of a settlement by residence, and the like must be held with respect to its loss by absence. The admission in the defences that Crabb, when away was pursuing his business as a basket maker, and from time to time remitting money to his wife, puts the defender out of Court.

(initd) “J. G. S.”

FORFARSHIRE---DUNDEE

Mr Sheriff Cheyne

[May 1871]

Robert Edmonds - Pursuer

James Gibbs, - Defender

Aliment - Non-liability of Son-in-law,--Circumstances in which Hel that a man was not bound to support his father-in-law

This was and action at the instance of Robert Edmonds against James Gibbs, a van driver, residing in Hawkhill, for maintenance. The defender pleaded inability to give support, and the Sheriff has now issued an interlocutor assoilzing the defender. The sheriff in his note says--- the defender’s circumstances are briefly these: - He is a Baker’s van driver, and his weekly wages in that capacity are £1. His family consists of a wife, the pursuer’s daughter, and five children, the eldest of whom is eight years of age, and the youngest one month. From the age of the children it is plain that the wife cannot contribute to the earnings of the family, as her whole time must be devoted to them. A sixth child died some time ago, and the defender to bury it, had to get an advance of £2 or £3 from his master, which is still due, as he is also a doctor’s bill, said to amount to £8. On the other hand, the defender appears to have 27s 6d. Deposited in the bank, these being his present circumstances, the Sheriff-Substitute cannot hold that the defender has any “superfluity” using the word in its technical sense.

It is difficult, and perhaps not desirable, arbitrarily to fix what sum is necessary for the substance of a working man’s family. Much must depend on what the family consists of, and the matter is one of discretion. At the same time, it is not to be overlooked that in passing the Wages Arrestment Limitation Act of last session, the Legislator has virtually indicated an opinion that £1 is the minimum sum upon which the family of an average working man can be maintained. Such an indication of opinion is entitled to the highest respect. In the present case, however. It is not necessary to apply the principle pointed at, because there is, in the opinion of the Sheriff-Substitute, enough in the number and youth of the defender’s children, to show that the defender can spare nothing for the aliment of his father-in-law.

SHERIFF COURTS

Mr Sheriff--Substitute Cheyne

The Commissioners of Her Majesty’s Treasury, Pursuer

Thomas Brown, Inspector, Liff and Benvie, Defender.

Industrial School---Regularity of Warrant---Liability of Parish,---Circumstances in which Held that an order to commit a pupil child to a Certified Industrial School was irregularly obtained, and was then invalid to the extent of fixing any liability for the child’s maintenance on the parish of Settlement.

The facts and legal points of this case are fully stated in the interlocutor and note issued by the Sheriff-Substitute as follows;--

“The sheriff--Substitute having heard parties and considered the petition with the evidence adduced, assoilizies the within designed Thomas Brown, as Inspector of the poor of the parish of Liff and Benvie, and as such representing the parochial Board of the said parish, from the conclusions of the petition, so far as these relate to expenses already incurred or disbursed by the Commissioners of Her Majesty’s Treasury for the support and maintenance in the Dundee Certified Industrial School, of the child mentioned in the petition; Quoad ultra, finds no expenses due and decerns.

(Signed) “John Cheyne.

“Note,--This is and application presented under section 38 of the Industrial Schools Act, 1866, against the Parochial Board of Liff and Benvie and its Inspector, craving (!) reimbursement of the sums already advanced by the Commissioners of the Treasury for the support, in the Dundee Certified Industrial School, of a boy named William Kinnaird, who is detained under a Magistrates order; and (2) and order upon the Board for payment of such advances as may be made by the Commissioners during the three years for which the boy may still be detained in the said school under that order. The Section of the statute under which the application is brought in the following terms;--’ In Scotland, where a child sent to a certified Industrial School und this Act is, at the time of his being so sent, or within three months then last past, has been chargeable to any parish, the Parochial Board and the Inspector of the poor of the parish of the settlement of such child, if the settlement of the child is in any parish of Scotland, shall, as long as he continues so chargeable, be liable to repay the Commissioners of Her Majesty’s Treasury all expenses incurred in the maintaining him at school under this Act, to an amount not exceeding 5s. Per week, and, in default of payment those expenses may be recovered by the Inspector of Industrial Schools…… in a summary manner before the magistrate having jurisdiction in the place where the parish is situate’ It is only, I think, necessary to read this section to arrive at the conclusion that it does not warrant the latter part of the prayer of the petition, The liability of the Parochial Board to repay the sums expended by the Commissioners of the Treasury is not absolute or unqualified, but depends upon the child remaining chargeable to the parish, and the continuance or chargeability cannot be assumed, at least where - as here - the child has a parent alive and not out of prison. Apart from this there is no provision in the section 38, as there is in section 40, which deals with the contributions of parents for a respective decree; and there are other difficulties (the uncertainty which exists whether the Treasury will not change their rate, may be mentioned as one of these) in the way of such a decree. The point appears to me, however, to be so clear, that I shall not enlarge upon it, proceed at once to consider the other part of the petition, viz:- that which prays for the petition of the expenses already incurred.

“The facts of the case as follows: -

“The boy’s father, Duncan Kinnaird, died in January, 1870, leaving a widow and four pupil children, the eldest of them ten years of age. At the time of his death, he had a residential settlement and altho his residence in the parish of Liff and Benvie, where his widow has continued to live. A few days after the death of her husband, Mrs Kinnaird applied to the Parochial authorities for relief, and it being found on inquiry, that she had, with all her family, just had fever, and was not yet able for work, an allowances of 3s. A-week was given her. After which time this allowance was reduced, and finally, in July, 1870, she was struck off the roll of paupers, in respect, that she was earning fair wages and was no longer a proper object of Parochial relief. Against this decision she made no appeal, but in august, 1870, she proceeded to a Magistrate, who, apparently on no other ground than her statement that she was unable to maintain the her family, ordered her two children one of them being the boy referred to in these proceedings, and then eight years old, to be detained for five years in the Dundee Industrial School where accordingly they now are. Since getting this order she has not applied for assistance to the parish, but has supported herself and the remaining members of her family out of the earnings of herself and her eldest daughter, which have averaged between 16s. And 17s weekly. In October, 1870, the present petitioner applied to the respondents for repayment of the expenses incurred up to that date but the respondents refused to acknowledge the claim.

Upon the facts now stated I have arrived on grounds entirely satisfactory to my own mind, at the conclusion that the respondents cannot he held liable. I cannot, however, give my assent to all the pleas which were urged on their behalf. One of these pleas was that the 38^th section of the statute only applies where the child is an orphan or has been deserted by the parents, because only in these circumstances can the child be said to be itself chargeable. This seems to me too strict a reading of the Act.

It is undoubtedly true that the pauper was the mother, and that her name alone appeared in the roll of paupers, but then, in the eye of the law, she comprised all he pupil children, and the relief given to her was relief given to them. I am therefore of opinion that this child must be held to have been, within three months of the date of the order for its detention, a child chargeable on the parish of Liff and Benvie. Again it was urged on behalf of the respondents that the Magistrate’s order was improperly granted and ought not to be regarded. To an extent I am free to confess that I think this plea well founded. The order bears to proceed upon section 14 of the statute, and the only children who can be sent to an Industrial School under that section are

(1) Children found begging or receiving alms, or being in any street or public place for the purpose of begging or receiving alms;

(2) Children found wandering, not having any home or settled place of abode or proper guardianship or visible means of subsistence; (3) children found destitute, either being orphans or having a parent who is undergoing penal servitude or imprisonment; or (4) children frequenting the company of reputed thieves.

Now is seems impossible to bring this child under any one of these categories; and therefore I think if highly probable that the mother’s story is true, viz; -- that the order s presented on her simple statement that she was unable to maintain the child. If this be so (and it would, I am sorry to say, not be the first case of the kind), there can be no doubt that the Act has been in this instance grossly abused. And that the Magistrate who issued the order exceeded his powers in doing so. His plain duty was to refer the mother to the Inspector of poor. But while I entertain a strong opinion to the effect now expressed, I cannot agree with the respondents that the order is to be treated as null and void. I am not entitled to review it, but am, I think, bound for the purpose of the present application to treat it as properly made. There is, however, another, and it seems to me so insuperable answer to this claim now under consideration, and that is, that the petitioner has neither averred nor proved that the child has been during any part of the past two years chargeable on the parish. The want of averment could of course be cured by an amendment, but in seems needless to go through the form of introducing an averment, which. In my view, the proof does not support. In order to solve this question if is necessary to consider the circumstances of the mother, for if she has had the means of maintaining herself and her family without assistance, she was bound to do so, and her children, as in question with the parochial Board, cannot he held to have been chargeable.

Now, we start the fact that she has not, since the boy was admitted into the school, applied for or been in receipt of any parochial relief. That might not be in itself conclusive, because, under a humane principle of our law, a widow who does her best to maintain her pupil children, and finds her efforts inadequate, is entitled to relief as a pauper--the relief given her being the difference between what she is able to earn and the amount necessary for the support of herself and her family; and therefore it might happen that while her earnings were sufficient to support herself and the two children de facts living in family with her, they would be insufficient if he had the additional burden of the children detained in the Industrial School thrown upon her. In the present case, however, I cannot hold that if the boy referred to in these proceedings and his brother, who is also in the Industrial School, had both been living in family with their mother she would have had any good ground for claiming relief from the parish. The united earnings of herself and daughter have averaged 16s, or 17s. A-week, and that sum seems to me, according to the standard usually applied to those questions of relief to be adequate for the support of a mother and four children of whom the eldest is only twelve years of age. The result of the foregoing observations is, that the present application falls to be dismissed. In bringing them to a close, I cannot refrain from remaking upon the delay that has taken place in the institution of these proceedings. The effect of it will be that the State will in all probability lose 1s. or 2s. Which might with proper diligence have been recovered from the mother for each week in the past two years. My judgment does not, however, proceed to any extent upon the delay, but purely upon the merits of the case.

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PARISH OF DUNDEE V. PARISH OF FORDOUN

Parish of Settlement---Relieving Parish--Liability for Suit of Clothes

Notice. - A pauper left the parish of A, the parish of settlement, properly provided with clothes, and appeared in the parish of B in rags. He was admitted to the poorhouse of settlement, and notice of chargeability having been sent to the parish of settlement, it required the pauper, to be sent on. The relieving parish thereupon provided the pauper with a new suit of clothes, but the pauper on being sent to the office of the parochial board to get money to purchase his ticket, absconded. No notice of this fact was sent to the parish of settlement. Held that, in these circumstances, there was no action against the parish of settlement for the price of the clothes

On Wednesday, 11^th November, 1875, in the sheriff Court at Stonehaven, sheriff Dove Wilson gave a judgment in the action at the instance of Henry Jack, inspector of poor, Dundee against Robert Bruce, inspector of poor, Fordoun. The sheriff in pronouncing judgment, said that he had continued the case till that in order to see whether any further proof would be required, or whether he had sufficient facts in the correspondence to enable him to decide it.

He thought now that the case might be decided upon the facts, as shown by the correspondence. It was a case which, although the amount at stake was very small, was of some interest, and also of some importance. It was a claim by the inspector of the parish of Dundee against the inspector of the parish of Fordoun for the sum of 9s 6d., being the value of clothes supplied to a pauper named Robert Bonar, under the following circumstances - It appeared that Bonar left the poor house of Stonehaven on the 17^th July in possession of a full suit of clothes. It further appeared that he turned up at Dundee in a suit of rags.

He was admitted into the poorhouse there, and intimation of liability was mad to the parish of Fordoun. Upon the 11^th of August following, the parish of Fordoun admitted its liability, and sent to Dundee instructions to send the pauper to Stonehaven where he would be admitted into the poorhouse. Upon the day following, the 12^th of August, when these instructions were received, the Inspector at Dundee took steps to carry them out, and on the 13^th August, the pauper was supplied with the clothes in question, and left the poorhouse to go to the office of the parochial board, and there to get a railway ticket, or money to purchase one. It appeared however, that in place of going to the parochial board office he absconded, and went away with the clothes in his possession. No intimation of his having absconded was made to the defender’s parish, and it was not till the 3^rd September the following year that they learned the fact, and they only did so in reply to inquiry made by them. Soon after that, the pursuer made a claim upon the parish of Fordoun, consisting of two items --- one for board in the poorhouse, and one for the value of the clothes. The board was a claim that was clearly due, and was admitted and paid by the defender, but he disputed liability for the clothes. Now, it appeared that the clothes were supplied by the parish of Dundee after the instructions from the parish of Fordoun had been received, in which no direct authority to give clothes was contained. It therefore appeared to his Lordship that there was only two grounds on which the parish of Dundee could maintain that Fordoun was liable for the clothes. It might maintain, in the first place, that, notwithstanding the instructions, the parish of Dundee retained full control over the kind of relief and the quantity of it that was to be supplied to the pauper; or it might maintain that, although there was no express authority to give clothes, still they were bona fide given in the course of carrying out the instructions that Fordoun had sent, and that it was only an accident that these instructions were not entirely carried out, Now, regarding the first of these pleas, the Sheriff did not think that the Poor Law would support it. He thought that the main control, under the principle of the Poor Law Act, lay with the parish of settlement, and that was the parish of Fordoun. The parish that paid had the primary control over the nature and amount of relief. It that was the state of the law, it was quite clear that Dundee had no longer full control after getting instructions, and that, therefore, it must rest its case upon the second plea, that what was done was done bona fide in the course of carrying out these instructions, His Lordship did not think that there was any ground for disputing that if the parish of Dundee had carried out the instructions given by the parish of Fordoun, they would have established their claim; but it did not appear to him that Dundee did not. It was not sufficient merely to keep this man out of the poorhouse, and to take no concern whether he went to the railway of not. It had been the said for pursuer that he had no control over the pauper after he left the poorhouse, but his Lordship was not at all clear upon that.

He thought, if the pauper left the house with the clothes supplied by them, they were perfectly entitled to see that he did not abscond with them, and that they would have been justified in apprehending him. But be that as it might, there was another ground why the parish of Dundee could not succeed. Even that it was an accident, and not any neglect, that allowed his pauper to escape, the Sheriff thought notice should have been sent to Fordoun, as, if they had got such notice, it was perfectly possible that they might have caused the man to be apprehended again, and that they might have got in his possession the clothes for which they had been charged; but, in consequence of the want of that notice, the pauper was enabled to escape, and the clothes that had been supplied to him were just wasted in the way he had been in the habit of doing. The Sheriff thought that the course or their being lost was the omission of the Dundee inspector to give intimation to the parish of Fordoun, and Dundee having failed to do that, failed to do everything that was reasonable and proper for carrying out the instructions from Fordoun. It might be somewhat hard upon Dundee to be made responsible for the result of what, in one point of view, be considered an accident; but, in circumstances of this action, they should be held to. It was very desirable that the parish that had to pay should have full control over the relief that was administered and that was administered, and if were to be allowed in the case of Dundee. There was no reason why every parish should not do the same, and the parish settlement might be rendered liable in any number of claims of this kind. Decree of absolivitor was pronounced. Mr Crockett acted for Dundee and Mr. Falconer for Fordoun