Scottish Court of Session Decisions

The Lord Justice-Clerk said—The aggregate sum sued for in this case by the pursuer amounts to £137, 15s. 7d. The defender pleads want of notice and mora. The account begins on 26th February 1853, and ends on 29th January 1864, thus extending over a period of nearly eleven years. No statutory notice was given to the defender until 24th August 1853, and the portion of the account before that date is not insisted in. The paupers continued to receive aliment from August 1853 till 23d February 1854, and if there be no good defence on the ground of mora, Barony is entitled to recover the advances betwixt these dates. But from February 1854 to November 1855 there is nothing charged in the account. This interval of rather more than twenty months is an important element in this question. It is averred by the defender that during this time the paupers had ceased to be proper objects of parochial relief, and that is admitted by the pursuer. In that state of the facts the question arises, whether, in February 1855, it was necessary to give another notice, under section 71 of the Poor-Law Act, in order to preserve recourse against Dailly. This is a very important question, and it has been argued to us both upon the construction of section 71, and also on the ground of expediency. I am not inclined to give very much weight to the argument ab inconvenienti, but I am disposed to give a fair and reasonable construction to the statute, having regard to the subject with which it is dealing. By the section, notice is required to be given by the relieving parish “of such poor person having become chargeable.” The question is whether these poor persons, having been from February 1853 to February 1854 in receipt of parochial relief, having in February 1854 ceased to be objects of parochial relief, and having again in November 1855 become chargeable, this is within the meaning of the section, the occurrence a “poor person becoming chargeable.” It was represented to us that to hold that it was would render a new notice necessary after every short period of cessation from receiving parochial relief. I should be very sorry to construe the section in that way. I am aware that there are often breaks in the continuity of paupers receiving relief without his ever getting effectually restored to the position of a person of industry, capable of acquiring an industrial settlement. It would not do to say that after such a break the pauper had again become chargeable. But the other extreme was also put to us. Suppose a person, after being in receipt of relief, becomes self-supporting for twenty years, and then again falls into pauperism. The pursuer's argument was, that a notice once given was a standing notice for the poor person's life. I can just as little adopt that construction of the statute. We were told that, if we were to take any middle course, the matter would always depend on the discretion of the Court, and that uncertainty would thus be introduced in the administration of the poor law. I am not in the least afraid of that. I think we may fix on a construction which will be perfectly intelligible. We cannot foresee every case which may occur, but we may lay down a general rule which will apply in most cases. Wherever it can be fairly and distinctly alleged that for a considerable period of time a person has acquired an industrial character, if that person becomes an object of parochial relief, he is a person “becoming chargeable” in the sense of section 71. I don't think such a rule will entail the slightest hardship; and I am therefore of opinion that in this case, after the period of twenty months, the chargeability of the paupers was a new chargeability, requiring a notice in order to preserve recourse against the parish of settlement. This view defeats the pursuer's claim from 1855 to 1860, when a new notice was given. As regards the aliment since 1860, and the aliment before 1855, there remains the defence of mora. We are told that in 1854 Dailly repudiated liability. I am not much moved by that. I don't see how the plea of mora could arise in any other case. If there is an admission of liability, the relieving parish becomes the agent of the parish of settlement. But in the circumstances of this case, I think there is nothing on which to found the plea of mora. There is nothing but the mere lapse of time, and I know of no case in which the lapse of time which occurred here has of itself been held sufficient.

The pursuer was found entitled to expenses up to the date of closing the record, and the defender to expenses since that date to the extent of three-fourths.