Scottish Court of Session Decisions

By section 75 of the Lunatics (Scotland) Act 1857 (20 and 21 Vict. c. 71) it is enacted—“Every pauper lunatic detained in any district asylum under this Act shall be deemed and held to belong and be chargeable to the parish of the legal settlement of such lunatic at the time the order for his reception in such asylum was granted, and the expense of his maintenance in such district asylum shall be defrayed by such parish accordingly, and the residence of any pauper lunatic in any such district asylum shall be deemed to be the residence of such lunatic in the parish legally chargeable with the maintenance of such lunatic.”

By section 77 of the same Act it is enacted—“The expense incurred by any superintendent of any asylum, or by any other party, for or in relation to the examination, removal, and maintenance of any lunatic, shall be defrayed out of the estate of such lunatic, or if such lunatic has no adequate estate, and if such expense shall not be borne by the relatives of such lunatic, then the lunatic shall be treated as a pauper lunatic, and such expense shall be defrayed by the parish of the settlement of such lunatic, and the superintendent or other party disbursing such expense shall he entitled to recover the same from or out of the parties or estate liable to defray the same as aforesaid.”

By section 15 of the Lunacy (Scotland) Act 1802 (25 and 26 Vict. cap. 54) it is provided that it shall be lawful for the Sheriff of the county in which a lunatic charged with assault or other offence inferring danger to the lieges, or found in a state threatening danger to the lieges, or in a state offensive to public decency may have been apprehended or found, upon application by the procurator-fiscal or inspector of poor or other person, accompanied by a certificate from a medical person bearing that the lunatic is in .a state threatening such danger, or in a state offensive or threatening to be offensive to public decency, forthwith to commit such lunatic to a place of safe custody. It further provides that the Sheriff, at the time of granting the warrant to commit the lunatic to an asylum, shall grant decree against the parish within which the lunatic shall have been apprehended or found at large for the expenses of the application and for such sum as may be necessary for the maintenance of the lunatic, and “the parish so decerned against and paying such expenses and cost of maintenance shall have relief and recourse therefor against the lunatic and his estate and any of his relatives legally liable for his maintenance, and also against the parish of settlement of such lunatic in the event of the parish in which the lunatic was apprehended or found at large not

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being the parish of settlement as accords of law.

By section 8 of the Lunatics (Scotland) Act 1871 (31 and 35 Vict. c. 55) it is enacted that for the removal of doubts the above provisions concerning the removal of dangerous lunatics, &c., “shall not be limited to pauper lunatics, but shall apply to any person so charged or found, although he may not, by receiving parochial relief or in any other form, come within the definition of a pauper.”

On 23rd March 1897 the Inspector of Poor of Dundee received intimation from the police that a man, David Davidson, who resided in Dundee, but whose residential settlement was in the parish of Forfar, was insane. An officer was sent to Davidson's house, and as the result of the visit a private watchman was sent to watch him. The two district medical officers also visited Davidson, and they certified him to be insane. The Dundee Inspector on the same day presented a petition to the Sheriff-Substitute at Dundee to get a warrant to confine the lunatic. The same afternoon Davidson escaped from his house and went to Lunan-heau, Forfarshire. He remained at large till 20th March, when he was secured by the Forfarshire County Police in his brother's house at Lunanhead and taken to Forfar. The Inspector of Forfar caused him to be examined by two doctors, but they declined to certify him to be insane, as they did not know the circumstances under which he had been certified at Dundee. He was forwarded by the Inspector of Forfar, on the warrant already granted in Dundee, to the Inspector of Dundee, and by him placed in Dundee Asylum. On 30th March the Inspector of Forfar received from Davidson's brother Davidson's pocketbook, containing deposit-receipts for £45, 17s. 8d. in Davidson's name in the Union Bank. Up to that date both the inspectors had acted on the understanding that Davidson was a pauper. Davidson was detained in Dundee Asylum till 23rd October, when he was transferred to Montrose Asylum, where he was detained until 9th December 1897, when he was liberated as recovered. On 13th April of that year Forfar had admitted liability to Dundee. The sum expended in the defender's maintenance in Dundee and Montrose Asylums amounted in all to £26, Os. 11d., this sum including charges of 2s. 7d. for a lunacy warrant, 1s. 10d. for telegrams, &c., £2, 2s. for medical and £1, 1s. for chief-constable's account. On 13th January 1898 Davidson demanded the deposit-receipts from the Inspector of Forfar, and refused to pay the sum expended on his maintenance in the asylums. The Inspector of Forfar deposited in bank the amount claimed for maintenance, and gave Davidson the balance.

Thereafter the Parish Council of the parish of Forfar sued Davidson for £26, 0s. 11d. in the Sheriff Court at Dundee, under the Debts Recovery (Scotland) Act 1867.

The defender pleaded, inter alia—“(1) No title to sue. (2) The defender is not liable to pursuers in the sum sued for.”

On 6th July 1898 the Sheriff-Substitute ( Campbell Smith) pronounced the following interlocutor:—“Finds that on 23rd March 1897 the Inspector of Poor of the Parish of Dundee obtained from the Sheriff Court in Dundee, in respect of two medical certificates, a warrant authorising the detention of the defender as a lunatic in the Royal Asylum of Dundee; that on or about 26th March he was removed to said asylum, and detained therein till 23rd October 1897; that on 23rd October, at his wife's request and his own, he was removed to Montrose Asylum, and on 9th December he was liberated therefrom as ‘recovered:’ Finds that the sums sued for were in whole or in part advanced by the Inspector of Poor of Dundee on the footing that the defender was a pauper: Finds that when the defender was apprehended by the county police in his brother's house at Lunanhead he had in his pocket-book deposit-receipts containing £45, 17s. 8d., of which the pursuer obtained possession on 30th March; also that when taken to Forfar the pursuers caused him to be examined by Dr Murray and Dr Alexander, and that they declined to certify that he was insane: Finds that the pursuer, having thus brought within his knowledge cause for doubting both as to whether the defender was a pauper and as to whether he was a lunatic requiring confinement in the public interest and that there were possible questions of liability likely to arise between the defender, and the Inspector of Poor of Dundee, ought to have avoided attempting to put himself in the position of the said Inspector: Finds in law that the pursuer has failed to set forth and establish any valid title to sue the present action: Therefore dismisses said action,” &c.

The pursuer appealed to the Sheriff ( Johnston), who on 8th October pronounced the following interlocutor:—“Finds (1) that on 23rd March 1897 the defender was reported to the Inspector of Dundee, where lie was then living, as insane; (2) that on medical certificates in due form, an order was granted by the Sheriff-Substitute of Forfarshire at Dundee for the defender's detention in Dundee Asylum; (3) that at the date of his being certified insane the defender's settlement was in the parish of Forfar; (4) that the defender remained at large until 26th March 1897, when he was secured by the Forfarshire County Police at Lunanhead and taken to Forfar; (5) that defender was forwarded by the Inspector of Forfar on the warrant already granted in Dundee to the Inspector of Dundee, and by him placed in Dundee Asylum, and that he was detained there until 23rd October, when he was transferred to Montrose Asylum, where he was detained until 9th December 1897, when he was liberated as ‘recovered’; (6) that on 30th March the defender's pocket-book containing deposit-receipts in his name for £45, 17s. 8d. was handed to the Inspector of Forfar; (7) that on 13th April Forfar admitted liability to Dundee; (8) that the sum expended in the defender's maintenance in Dundee and Montrose Asylums during the above period amounted in all to

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£26, 0s. 11d., for which, and two guineas of modified expenses, decerns against defender in favour of pursuer.

Note.—“A very astute argument was submitted to me on behalf of the defender, to the effect that as the defender was not and never had been a pauper, the Inspector of Forfar had no call to meddle in the matter, and no right to act upon the Dundee warrant; that whether the Dundee Inspector would have had the right to recover outlays, the Forfar Inspector had none, either derivatively as the assignee of the Dundee Inspector or directly. I do not, however, think this sound. The defender was de jure a pauper, though he may have been de facto possessed of some means, and I think that the Inspector of Forfar was not only entitled but bound to act as he did, and was not entitled nor bound, in a question either with Dundee, the asylum authorities, or the defender, to disclaim primary liability and throw the question of recovering expenses of maintenance upon the asylum authorities, because four days after the defender was remitted to the asylum, evidence of his having some means was placed in his, the Inspector of Forfar's, hands. These means might not have been the defender's own, or might have been already attached, and at anyrate were not in a shape immediately available for his maintenance.

“I think the Inspector of Forfar was wrong in applying for new medical certificates, but I cannot deduce the same conclusion as the Sheriff-Substitute does from their refusal. They were properly refused, because the Forfar doctors were not going to interfere without information with a warrant recently granted on the certificate of their Dundee brethren, presumably granted upon information.”

The defender appealed, and argued—The pursuers had no title to sue him for the money expended on his maintenance in Dundee Asylum. When they acknowledged liability to Dundee they knew that the defender had means. Notwithstanding they had proceeded as if he were a pauper. The pursuers had no right to pay money on the defender's behalf. If the defender were held to be a pauper at the time at which the money was paid there was no ground of relief against him. If he were not a pauper, then the proper procedure under the statute had not been adopted. It had not been suggested that he was a dangerous lunatic, and unless he was such the parish of Forfar had no title to sue in terms of the Lunacy Acts. In the case of Inspector of Poor of Kilmartin v. Macfarlane, March 6, 1885, 12 R. 713, it had been recognised by all the judges that where a lunatic has been given relief, any ground for suing him must be contained in the statute.

Argued for the pursuers—At the time of his committal the defender was to all appearance a pauper lunatic, and the defenders were entitled to treat him as one, and to be recompensed for the sums expended on his maintenance— Dinwoodie v. Graham, January 27, 1870, 8 R. 436, ruled the present case. The arguments of the Sheriff were sound.

At advising—