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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cassels v. Keith [1866] ScotLR 2_167 (4 July 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0167.html Cite as: [1866] ScotLR 2_167, [1866] SLR 2_167 |
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Page: 167↓
Held that a party receiving temporary relief, and who was entered in the casual and not the permanent roll of paupers in a parish, was a pauper in the sense of the Poor Law Amendment Act, and that being in actual receipt of relief, the Sheriff
Page: 168↓
had no jurisdiction to entertain any question as to its adequacy, the only competent remedy being an appeal to the Board of Supervision.
An application for parochial relief who had been for three months receiving continually increasing allowances, but who was not on the permanent roll, applied to the Inspector of the Poor of Lanark on the 22d of May for further relief. She then received a shilling, and was told not to come back till the 8th of June, when her case would be considered by the board. On the 31st of May she presented a petition to the Sheriff, setting forth these circumstances, and praying that the inspector should be ordained to award her relief. The Sheriff-Substitute (Dyce) held the question to be one as to adequacy of relief, not of refusal, and therefore that his jurisdiction was excluded, the petitioner's remedy being a complaint to the Board of Supervision under section 74 of the Poor Law Amendment Act. On appeal, the Sheriff (Alison) altered, holding that the allowance of such a small sum for such a long period amounted substantially to a refusal of relief. The inspector advocated.
A debate took place before the Lord Ordinary on the question of law disposed of by the Sheriffs, but his Lordship was of opinion that it was necessary that there should be a proof of the averments of parties. A proof was accordingly taken. After a second debate, the Lord Ordinary returned, on the same grounds, to the interlocutor of the Sheriff-Substitute. His Lordship further held that the petitioner's case was excluded by the judgment of the Court in the case of Johnstone v. Black, July 13, 1859, 21 D. 1293.
The petitioner (respondent) reclaimed.
W. A. Brown for her argued—There are two facts in the case beyond dispute (1) that for a period of three weeks the petitioner was left to depend for her maintenance on a sum of one shilling; and (2) that she never was at any time entered in the permanent, but was throughout placed on the casual roll of paupers. It is not disputed that a pauper, refused relief, has a right of action before the Sheriff, and the Sheriff-Depute was right in holding that the allowance of so small a sum for such a long period is virtually a refusal of relief. The circumstances of the case, therefore, would have given the petitioner the remedy of appeal to the Sheriff even if she had been placed on the permanent roll of paupers. But being only on the casual roll, she is not a poor person having legal rights in the sense of the 33d section of the Poor Law Amendment Act, and therefore the remedy of appeal to the Board of Supervision was not competent to her, because that is only given to those who are on the permanent roll, and thereby have legal rights as paupers. The case quoted by the Lord Ordinary has no application whatever to the circumstances of this action. That was a case where the Court held that the administration of temporary relief did not operate to the effect of destroying a settlement on the ground that the relieving parish did no more than discharge the obligation which was incumbent on the parish where the pauper had a settlement. That case went no length at all to decide that a person receiving temporary relief was entitled to avail himself of the privileges accorded to paupers by the Poor Law Act, who are on the permanent roll.
John Marshall, for the respondent, was not called upon.
The Lord President said the case would be continued till the Court had an opportunity of inquiring into the practice of the Board of Supervision.
At advising—
The Lord President—This is an advocation from the Sheriff Court of Lanarkshire. The Lord Ordinary has advocated the cause, and altered the interlocutor of the Sheriff. We have a reclaiming-note before us against that interlocutor. The case arose on an application to the Sheriff by a pauper, or a person in need of relief, on the footing that relief had been refused by the inspector. The application was made under the 73d section of the Poor Law Amendment Act. The question then came to be whether this person was in. the predicament of one who had been refused relief, or in the predicament of one whose relief was inadequate. It was contended, on behalf of the petitioner, that she was not in the position of one who had the remedy competent under the 74th section of the Act. It appears that she obtained relief from the inspector for three months, getting monthly allowances during that period. But it is said she was not entered on the regular roll of paupers, and it is contended that not being so, she was not entitled to appeal to the Board of Supervision. It appears that the allowance given to her was not large, and that it was given to her monthly, but it was given to her in advance, and she was told, on the 22d of May, that she should get no more until another meeting of the board. I think it is quite clear that relief which is merely exhausted cannot be called a refusal of relief. I had very little doubt, on a reading of the statute, that this party was not in the predicament of being refused relief under the 73d section. But then it was contended that she could not obtain redress under the 74th section of the Act, because, not being on the permanent roll of paupers, she had not legal rights provided for by the Act. I don't think the fact of being on the roll is the test of having right to this redress, and any omission on the part of the inspector will not debar a party from the remedy competent under the 74th section. I accordingly thought it proper to inquire in regard to the practice, and I have inquired, and I find that a party who has at any time received parochial relief is recognised as a pauper entitled to complain to the Board of Supervision. I think that this practice is in accordance with the principle of the statute, and with reason. I think, therefore, that the Lord Ordinary and the Sheriff-Substitute are right, and that the Sheriff is wrong.
The other Judges concurred.
The judgment of the Lord Ordinary was accordingly adhered to, with additional expenses.
Solicitors: Agents for Advocator— Bell & Maclean, W.S.
Agents for Respondent— Macnaughton & Finlay, W.S.
