Scottish Court of Session Decisions

The Poor Law (Scotland) Act 1898 (61 and 62 Vict. cap. 21), section 5, sub-sections (1) and (2), are quoted in rubric.

The Poor Removal Act 1862 (25 and 26 Vict. cap. 113), section 2, is quoted in rubric.

The Parish Council of the City Parish of Edinburgh, pursuers, brought an action against (1) The Local Government Board for Scotland, Edinburgh, and also for any interest that they might respectively have in the premises, (2) Mrs Elizabeth Buckle or Scott, care of Mrs Isabella Lumsden, Freuchie, in the parish of Falkland; (3) The Parish Council of the said parish of Falkland; and (4) the Guardians of the Poor of the Union of St Pancras, in the City of London, defenders, for declarator that a warrant or order granted by the Sheriff of the County of Fife, at Cupar-Fife, on the 16th day of May 1911, at the instance of Lawrence Reid, Inspector of Poor for the Parish of Falkland, for the removal, under the provisions of the Poor Removal Act 1862, of the said Elizabeth Buckle or Scott to the Union of St Pancras, was properly obtained, and is a good and valid warrant for such removal, and that the defenders the Local Government Board for Scotland have no power to interfere with the operation of the said warrant by virtue of the provisions of the Poor Law (Scotland) Act 1898 (61 and 62 Vict. cap. 21), or otherwise, and that the said warrant may be put in force notwithstanding any minute or order of the said Board bearing to be made under the provisions of section 5 of the said Act; and for reduction of ( first) a minute or order of the said Local Government Board for Scotland, dated 4th August 1911, purporting to determine, in accordance with the provisions of section 5 of the said Poor Law (Scotland) Act 1898, that it was not reasonable or proper that the said Elizabeth Buckle or Scott should be removed from the parish of Falkland to St Pancras Union, and to sustain accordingly an appeal at the instance of the Board of Guardians of the Union of St Pancras against her removal; and ( second) a minute or order of the said Local Government Board for Scotland, dated 20th May 1912, by which the Board purported to further determine, in terms of powers alleged to be conferred on them by the proviso to section 5 of the Poor Law (Scotland) Amendment Act 1898, that the expense of maintenance of the said Elizabeth Buckle or Scott should be borne as from the 4th August 1911 by the Parish Councils of Edinburgh and Falkland in the proportions of 36–40ths by the parish of Edinburgh, and of 4–40ths by the parish of Falkland.…

The Local Government Board were the only compearing defenders.

The pursuers averred, inter alia—“(Cond. 5) Within the area forming the parish of Edinburgh, which is under the administration of the pursuers, there is situated the Royal Edinburgh Asylum, to which insane persons are admitted in considerable numbers from all parts of Great Britain and Ireland. It thus happens that persons who are not natives of, and who have not acquired any settlement in the parish of Edinburgh, live for prolonged periods within the bounds of the parish in said asylum. Questions have arisen between the Local Government Board and the pursuers as to how far, if at all, the provisions of sections 4 and 5 of the Poor Law (Scotland) Act 1898 are applicable to persons of English or Irish birth who have not acquired any settlement in Scotland, but who, as certified lunatics following upon a warrant of the Sheriff, have been inmates of the said Royal Edinburgh Asylum. There are also cases in which insane persons are boarded out in parishes in Scotland in virtue of the

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provisions of the Lunacy Acts applicable to Scotland, and questions have arisen between the Local Government Board and the pursuers as to whether the provisions of the sections before mentioned are applicable to such persons under circumstances of which the case hereinafter dealt with is typical. (Cond. 6) A case with which the pursuers question the power of the Board to deal as falling within the scope of the provisions referred to is that of Mrs Elizabeth Buckle or Scott, a pauper lunatic who recently became chargeable to the parish of Falkland. She was born in London, and became chargeable in Leith in June 1871. Being then a lunatic, she was removed to the Royal Edinburgh Asylum. The parish of St Cuthbert's admitted liability in respect of her husband's residential settlement. From 3rd February 1885 to 25th February 1885 she was boarded out by that parish as a pauper lunatic at Kennoway, Windygates, Fifeshire. From 25th February 1885 to 11th August 1903 she was boarded out also as a pauper lunatic in the parish of Kettle, Fifeshire, and thereafter, from 11th August 1903 until May 8th 1907, at Freuchie, Falkland. Her husband died in Leith in October 1906. On 8th May 1907, her son having intimated that he would in future support her, her name was taken off the pauper roll, and on 30th May 1907 she was struck off the books of the General Board of Lunacy. From 1st May 1907 until 11th August 1910 she continued to be boarded at the expense of her son at Freuchie, in the parish of Falkland, she being, however, during all that period of unsound mind. Owing to the death of her son, and failure of other means of support, the person with whom she was boarded applied to Falkland Parish for relief, which was afforded, and on 10th November 1910 the Poor Law Authority of Falkland made a claim on the pursuers, liability for which the pursuers denied. The Parish Council of Falkland thereupon applied for and obtained a warrant from the Sheriff of the County of Fife and Kinross, sitting at Cupar-Fife, dated 16th May 1911, authorising, in terms of the Poor Removal Act of 1862, the removal of the said pauper lunatic to the St Pancras Union, London. This is the warrant referred to in the summons. … Against the removal thereby authorised the Guardians of the Poor of St Pancras Union lodged an appeal. (Cond. 7) Upon consideration of the appeal the Local Government Board, claiming to act under the provisions of section 5 of the Poor Law (Scotland) Act 1898, by minute dated 4th August 1911, professed to determine that the ‘proposed removal of the said Elizabeth Buckle or Scott from the parish of Falkland to St Pancras Union was not reasonable and proper,’ and accordingly sustained the appeal of the St Pancras Union Authorities; and by further minute, dated 20th May 1912, the Board further professed, in terms of the powers conferred on them by the proviso of section 5 of the Poor Law (Scotland) Act 1898, to determine that ‘the expense of maintenance of Elizabeth Buckle or Scott should be portioned, as from 4th August 1911, between the Parish Councils of Edinburgh and Falkland in the proportions of (1) Edinburgh, 36/40ths, (2) Falkland, 4/40Arths.’ These minutes are the minutes brought under reduction in this action. (Cond. 8) The pursuers contend that the warrant or order granted for the removal of the said Mrs Elizabeth Buckle or Scott under the provisions of the Poor Removal (Scotland) Act 1862 was properly obtained, and that section 4 of the Poor Law (Scotland) Act 1898 was not applicable so as to render the obtaining of the warrant incompetent. They further maintain that the warrant so obtained is not liable to be set aside or otherwise interfered with by the defenders the Local Government Board for Scotland, by virtue of any powers contained in section 5 of that Act or otherwise. The said pauper is not a person falling within the scope either of section 4 or section 5. From 1871 onwards the said pauper was a person of unsound mind, and was in that mental condition during the whole period she was boarded out under guardianship in the said parish of Falkland. The minutes of the Board professing to sustain the appeal of the Board of Guardians of St Pancras Union against the removal order, and the consequent minute professing to allocate the expense of maintenance between the parish of Edinburgh and the parish of Falkland respectively, were ultra vires of the said Local Government Board, and are null and void. The pursuers have, however, been wrongfully called upon to make payment of the proportion of the cost of maintenance of the pauper specified as payable by them under said minute, and this action has accordingly been rendered necessary.…”

The defenders averred, inter alia—“(Ans. 5) Admitted that the Royal Edinburgh Asylum is situated in Edinburgh. Admitted that questions have arisen between the pursuers and these defenders as stated. (Ans. 6) Admitted, under reference to the warrant of the Sheriff dated 16th May 1911, and with the explanation that the pauper in question was married in Edinburgh in February 1867, and that for a month in 1885 she was boarded out in Kennoway Parish, Fife, before being moved to Kettle Parish. Explained that since the raising of the action the Guardians of the Poor of the Parish of St Pancras have ascertained that the pauper in question was born on 5th February 1845 at St Edward's Yard, Kinnerton Street, in the parish of St George, Hanover Square, in the St George's Union. (Ans. 7) Admitted, under reference to the minutes of 4th August 1911 and 20th May 1912.… (Ans. 8) Denied that the said pauper is not a person falling within the scope of sections 4 and 5 of the Act of 1898. Admitted that from 1871 onwards she was a lunatic. Denied that the action of the Board complained of was ultra vires. Explained that the Board, in the exercise of the discretion conferred upon them by section 5 of the 1898 Act referred to, sustained the appeal of the Guardians of the Poor of the Union

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of St Pancras, in the city of London, and apportioned the expense of maintenance of the pauper in question. Explained, further, that pauper lunatics are included in the expression ‘poor person’ in sections 4 and 5 of the Act of 1808, and that these defenders acted within the powers conferred upon them by said sections when they considered and disposed of the appeal made to them.”

The warrant of the Sheriff was as follows:—“ Cupar-Fife, 16 th May 1911.—I, Samuel Beveridge Armour Hannay, advocate, Sheriff-Substitute of the County of Fife, having considered the foregoing petition and certificate, and the deposition of the said Lawrence Reid and the documents produced by him, and having seen and examined the said Elizabeth Buckle or Scott, who refused to be sworn or to make any statement, and having examined into the state of the health of the said Elizabeth Buckle or Scott, Find that the said Elizabeth Buckle or Scott is of the reputed age of sixty-five years; find that the said Elizabeth Buckle or Scott last resided for three years in Freuchie, within the parish of Falkland; find that the said Elizabeth Buckle or Scott has become and is now actually chargeable to the Parish Council of the parish of Falkland, and that the said Elizabeth Buckle or Scott has not acquired and retained a settlement in Scotland; find that the said Elizabeth Buckle or Scott would not suffer bodily or mental injury by being removed as herein ordered: Therefore I do hereby order that the said Elizabeth Buckle or Scott be removed and conveyed to and delivered safely at the work—house at St Pancras, London, and I do order you, the said Lawrence Reid, inspector of poor, to cause the said person to be so safely conveyed and delivered, and you, the said Guardians of St Pancras, to receive the said person. S. B. Armour Hannay.”

The pursuers pleaded, inter alia—“(1) Upon a sound construction of the Poor Law (Scotland) Act 1898, the provisions of sections 4 and 5 thereof not being applicable to the case of English-born or Irish-born persons who are and continue to be lunatics while they live in Scotland, the Local Government Board for Scotland has no right or title to interfere under these sections with warrants, otherwise lawfully obtained, for the removal of such persons under the provision of the Poor Removal Act 1862, and the pursuers are entitled to decree of declarator and to reduction as concluded for.”

The defenders pleaded, inter alia—“(2) In respect that the expression ‘poor person’ in sections 4 and 5 of the Act of 1898 includes pauper lunatics, these defenders were entitled to receive and sustain the appeal as condescended on, and are entitled to absolvitor.”

The following joint minute was lodged by the parties:—“Christie for the pursuers, and Pitman for the defenders, the Local Government Board for Scotland, concurred in stating that parties were agreed that Mrs Elizabeth Buckle or Scott, the pauper lunatic in question, did not reside in the parish of Falkland for one year during period between the years 1867 and 1871, nor for any part of that period, and craved the Lord Ordinary to dispose of the case accordingly.”

On 6th December 1912 the Lord Ordinary ( Skerrington) granted decree in terms of the conclusions of the summons.

Opinion.—“The pursuers are the Parish Council of the City Parish of Edinburgh, and the compearing defenders are the Local Government Board for Scotland. The action raises a question of some general interest as to the particular class of cases in which the Poor Law (Scotland) Act 1898 (61 and 62 Vict. cap. 21) has conferred upon the Local Government Board a discretionary power to interfere with parish councils which have obtained a warrant for the removal of a pauper from Scotland to England or Ireland. Prior to 1898 the removal of paupers from one parish in Scotland to another was regulated by section 72 of the Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap. 83). The removal of English and Irish paupers to their native land was regulated by section 77 of the same statute, as amended by the Poor Removal Act 1862 (25 and 26 Vict. cap. 113). It seems to have been considered a hardship both on paupers and on boards of guardians that English and Irish paupers who had resided for a considerable time in Scotland without acquiring a settlement were liable to removal if a sheriff or two justices could be persuaded to grant the necessary warrant. It seems also to have been thought that the law as it stood under the Act of 1845 made it too difficult to acquire a settlement by residence, and further, that in certain cases paupers who had a settlement in Scotland ought not to be removed from the parish where they became chargeable to their parish of settlement. The Act of 1898 was passed in order to remedy these evils. The question in the present case is whether the Local Government Board, acting in the assumed exercise of the powers conferred upon them by the Act of 1898, were entitled to determine that the removal of a pauper lunatic from the parish of Falkland to the Union of St Pancras, London, was unreasonable and improper. The question turns primarily upon the meaning of the word ‘reside’ as used in sections 3, 4, and 5 of the Act of 1898.

It has long been settled that ‘residence’ for the purpose of acquiring a settlement under section 76 of the Act of 1845 is residence by a person who has a certain amount of intelligence. A lunatic, as distinguished from a person of weak mind, cannot acquire a residential settlement. The conditions upon which a residential settlement may be acquired were altered by section 1 of the Act of 1898, which repealed section 76 of the principal Act. It is, however, clear that section 1 of the 1898 Act assumes that its readers are familiar with the Poor Law of Scotland as settled by numerous decisions. Its phraseology is nearly identical with that of section 76, and besides using the word ‘resided’ once in connection with the acquisition and once in connection with the retention of a

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settlement, it uses two expressions to which technical meanings have been attached by decisions, viz., ‘continuously’ and ‘maintained himself.’ There is no doubt that it is still the law that residence in a parish by a person of unsound mind will not avail for the acquisition of a settlement in that parish. On the other hand, I do not agree with the argument of the pursuers' counsel to the effect that in every case where the word ‘reside’ is used in the Poor Law Acts with reference to a pauper, the word necessarily refers to residence by a person who possesses some degree of intelligence. Section 1 of the Act of 1898 and section 76 of the earlier Act show that the word ‘reside’ may be used in the same section in a popular as well as in a technical sense. So tar as I know, it has never been contended in the Court of Session that a pauper lunatic who possessed a residential settlement in a particular parish was incapable of retaining that settlement by continuing to reside in the same parish. The contrary has been assumed in a number of cases, of which I need only refer to a single example— Keith Parish Council v. Kirkmichael Parish Council, November 8, 1901, 4 F. 76, 39 S.L.R. 100. It seems to me, therefore, that the pursuer's counsel argued his case too high. On the other hand, I agree with him that in any question as to the acquisition of a privilege by virtue of residence, this word, as used in the Poor Law Acts, prima facie means residence by a person who is possessed of some intelligence. When one reads the Act of 1898 as a whole, it seems to me clear that this prima facie view is actually the sound one. It has been said that the law of settlements is a matter of merely pecuniary interest to parishes, and that it is of no importance to paupers. The opposite is the truth. It may be of vital importance to a pauper whether he is removed from a town where he has lived most of his life and has friends, and is sent to a place where he is a stranger. Equally he has an interest in the question whether, after spending the best part of his life in Scotland, he is to be sent to England or Ireland. Accordingly the law as to the acquisition of a parochial settlement is, in my view, substantially a part of the law of status. As already explained, section 1 of the Act of 1898 makes it easier for a person to acquire a settlement in Scotland, but it still carries forward the long-established rule that a lunatic's residence in a parish will not help him to acquire a settlement. Sections 3, 4, and 5 of the same statute create new and minor privileges which a person may acquire by residence in Scotland even although such residence may not have been sufficient for the acquisition of a settlement. Thus by section 3 a pauper who has resided for a year in one parish may appeal to the Local Government Board against his removal to another parish in Scotland. This clause is conceived in the interest of paupers, because the Board has no power to alter the legal incidence of the burden of maintenance. Again, by section 4 an English-born or Irish-born pauper who has resided for a certain time in Scotland without having recourse to common begging or receiving parochial relief is declared to be irremovable from Scotland. Lastly, by section 5 English-born or Irish-born persons who have not acquired a settlement by residence in Scotland, and who have not acquired what is now popularly called a ‘status of irremovability’ under section 4, are entitled to appeal to the Local Government Board against a warrant for their removal from Scotland to England or Ireland, provided they have resided continuously in one parish for not less than one year. It will be seen, therefore, that sections 3 to 5 are really part and parcel of the legal reform initiated by section 1 of the same Act, and I have no doubt that the word ‘residence’ as used in all these sections means residence of a kind which would avail to acquire a settlement—in other words, residence by a person who is not of unsound mind. It is none the less true that every one of these sections applies to persons who are lunatics as well as to persons who are sane. It is of no importance whether a pauper is or is not of unsound mind at the time when the question arises whether he has a settlement by residence, or may appeal against an order for his removal to another parish, or against a warrant for his removal to England or Ireland, or whether he is irremovable from Scotland. Whether he is sane or insane, the only question is whether his residence in Scotland was of the kind contemplated by the particular section under which he claims to benefit. I recognise the force of the argument that the equitable restrictions upon the right of removal introduced by the Act of 1898 are a separate chapter in the Poor Law Code, and that in this chapter the word ‘reside’ should be construed in its ordinary as distinguished from its technical sense. I find it impossible, however, to dissociate sections 3 to 5 from section 1. Further, section 4 is expressed in the same technical language as section 1, and its phraseology supports the view that the scheme of legal reform contained in the statute must be regarded as forming one integral whole. The language of sections 3 and 5 is much less technical and significant than that of section 4, but they each contain a provision which suggests that the word ‘residence’ is used in something different from the merely popular sense. I refer to the parenthesis which allows a widow to tack on the period of her residence as a wife. This clause seems intended to exclude a technical rule of the Poor Law which might otherwise have been thought applicable.

The pauper was born in London in 1845. She was married in Edinburgh in 1867 to a man who had a residential settlement in the parish of St Outhbert's. She became chargeable in Leith in 1871 as a pauper lunatic, and she was maintained as such by the parish of St Outhbert's from 1871 till May 1907. From that time until August 1910 she was boarded at the expense of a son at Freuchie in the parish of Falkland, her name having been taken off the pauper roll. Owing to the death of her son she recently became chargeable to the parish of Falkland,

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which the reupon applied for and obtained a warrant from the Sheriff of Fife and Kinross authorising her removal to the Union of St Pancras, London. The Guardians of this Union lodged an appeal, and the Local Government Board determined that the proposed removal of the pauper was ‘not reasonable and proper.’ Although the pauper had resided in the parish of Falkland for many years before she became chargeable to that parish, her residence there must in my opinion be disregarded upon the ground of her mental incapacity, which has continued without a break from 1871 to the present time. There is nothing, however, in the pleadings to show that she may not have resided continuously in the parish of Falkland for a year sometime between her marriage in 1867 and the date when she became a lunatic. While I agree with the pursuers' construction of the statute, I do not propose to give facilities for the removal to England of a woman whose husband had a settlement in Scotland, and who has lived in this country for more than forty years, more particularly in view of the fact that the Local Government Board has determined that such removal would not be reasonable and proper. Accordingly I shall continue the case in order that the pursuers may take one or other of two courses. They may, if they choose, submit evidence to the Local Government Board to the effect that the pauper did not reside in Falkland Parish for a year between 1867 and 1871, and thereafter if the Board is against them the pursuers may amend their pleadings and ask for a proof. Alternatively the pursuers may move for a re-hearing of the case in order to argue that when section 5 of the Act of 1888 speaks of residence in a parish ‘for not less than one year before the date of the application for relief’ it means ‘immediately before’ such application, and that accordingly it is irrelevant to inquire into the earlier history of the pauper. It must, however, be understood that decree will not be pronounced as concluded for unless I am satisfied that it is justified either by the facts or by the law of the case. If the Local Government Board state that after considering the evidence they are satisfied that the pauper did not reside in Falkland Parish between 1867 and 1871 for the requisite term, I shall of course accept their statement.”

The defenders reclaimed, and argued—The appeal to the Local Government Board was competent. The Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap. 83), sec. 77, the Poor Removal Act 1862 (25 and 26 Vict. cap. 113), and the Poor Law (Scotland) Act 1898 (61 and 62 Vict. cap. 21), sec. 5, formed a code which regulated the removal of paupers. The code applied equally to sane and insane paupers, and the word “reside” when used with reference to the removal of a pauper did not have a technical meaning, but should be interpreted according to its ordinary meaning— Crawford & Petrie v. Beattie, January 25, 1862, 24 D. 357, per Lord Justice-Clerk (Inglis) at 367. Admittedly the word “reside” when used with reference to the acquisition of a settlement by a pauper did have a special technical meaning, but the question in the present case related, not to the acquisition of a settlement by a pauper, but to his removal. Therefore, since the word was not used in a technical sense, but in its ordinary meaning, it included the case of both sane and insane persons. Whether the lunatic had a right of appeal or not under sub-section 1 of section 5 of the Act of 1898, the Board of Guardians named in the notice of removal had a right of appeal under sub-section 2, and if it appealed the Local Government Board had the duty imposed on it of determining whether or not the removal was reasonable and proper on any ground.

Argued for the respondents—The appeal to the Local Government Board was incompetent. The Poor Law (Scotland) Act 1898 dealt with certain conceptions and employed certain language, the meaning of which had been settled by the Court long before the passing of the Act— Parish Council of Kilmalcolm v. Parish Council of Glasgow, May 29, 1906, 8 F. (H.L.) 12, per Lord Robertson at 13, 43 S.L.R. 639, at 640; Stirling Parish Council v. Dunblane Parish Council, 1912 S.C. 316, per Lord Dundas at 325 and 328, 49 S.L.R. 271, at 276 and 277. Sections 1 to 5 inclusive of the Act formed a catena of clauses all dealing with one or other aspect of the same matter, and the same meaning must be applied throughout to the word “reside.” The meaning which the Court had given to the word excluded the idea of residence by a lunatic— Melville v. Flock-hart, &c., December 19, 1857, 20 D. 341; Crawford & Petrie v. Beattie ( cit.); Kirkwood v. Lennox, July 10, 1869, 7 Macph. 1027, per Lord Deas at 1029, 6 S.L.R. 670; Keith Parish Council v. Kirkmichael Parish Council, November 8, 1901, 4 F. 76, 39 S.L.R. 100. The principle of settlement by residence was not introduced in England until 1876—Vullaimy, Settlement and Removal (2nd. ed.), p. 2. As to the Poor Removal Act 1862, that Act was a mere machinery statute which did not affect the qualifications necessary to bring a person within the Poor Law (Scotland) Act 1898. Moreover, “residence” had nothing to do with the question of removal at the date of the Act. Roger v. Maconochie, July 5, 1854, 16 D. 1005, and Beattie v. Leighton 6 Mitchell, February 20, 1863, 1 Macph. 434, were also referred to.

At advising—