The Sheriff-Substitute having heard parties on the closed record, Finds that it is averred, and has not been denied, that immediately after intimation was made to the defender that his grandmother had become chargeable to the Parochial Board, he offered to receive and support her in his own house: Finds that such an offer on his part fulfilled all that the law requires of a person in his circumstances, who, it is not averred, is able to afford separate maintenance to the pauper, and that such offer not having been accepted, he is not liable to repay the pursuer the alimony advanced. Therefore assoilzies the defender from the conclusions of the summons, and finds the pursuer liable in expenses, of which appoints an account to be given in and taxed in common form, and decerns.

NOTE. It would appear that the pauper is a very old woman, who had become chargeable on the Parochial Board of Elgin, and it has now been admitted at the bar, that immediately after the intimation was made by the Inspector in February, 1860, that she had become chargeable, the defender offered to take the old woman into his house, which offer it was apprehended was sufficient, but the Parochial Board of Elgin went a step further, and because he kept a public house, and earned his bread as a journeyman plumber, so that during the day he was employed in his trade, they would not accept of this offer, but insisted that he should provide for her otherwise, alleging that all the rooms of the house were employed by persons frequenting the inn, and of this they wished to be allowed a proof. The Sheriff-Substitute was, and is, of opinion, such proof ought not to be allowed. The law has declared "that a father is not obliged to pay his children an aliment in money, he can only be compelled to receive them into his own house, and give them the same entertainment he takes to himself; should he treat them ill, or refuse to receive them, he may be obliged to allow an alimony, etc. On the other hand, the obligation on the part of the child to aliment his parents will not be implemented by an offer to receive them into his house if able to afford a separate maintenance, but if he be not able to afford a separate maintenance, this will be a sufficient fulfilment of his obligation."

There is no allegation that this defender, who is a working journeyman, is able to afford his grandmother a separate maintenance, although he has now judicially offered to accommodate her in a room near him, but not in his own house.

It therefore appears to the Sheriff-Substitute that the pursuer ought at once to have seen that measures were taken for having the pauper removed to the defender's house; and it was time enough for the Board to interfere further if their inspector found that the defender treated her ill, but it is apprehended they had no right to say to him, You are a publican, and we will make an exception on that account, and are not to be satisfied with your offer to take your grandmother into your house.

Still further, the Sheriff-Substitute is of opinion the Parochial Board mistook their duty when, in the face of those offers not denied to have been made in February, but proved by the letter in process of 17th August, to have been then repeated, to receive the pauper into his family, they resolved to raise the present action. The Sheriff Substitute, under the whole circumstances, is of opinion that the defender is not liable for the alimony advanced after such offer, far less for the expenses of process.

This Interlocutor was appealed, and after a hearing, the Sheriff pronounced the following Interlocutor:-

The Sheriff recalls the Interlocutor appealed against; and before answer, allows to both parties a proof, and conjunct probation, to commence on a day to be fixed by the SheriffSubstitute.

NOTE.-Catherine Millar was found destitute in the parish of Elgin; and she was clearly a proper object of relief, unless and until she should be supported by relations liable and able to support her. In these circumstances the Board was clearly bound to afford her relief. They did so, and were justified, and only fulfilled their legal obligation in doing so. Probably

Millar to take the burden on herself of instituting the action against the defender if they had so pleased. But they would have been obliged to aliment her until the termination of such an action. And they would have had a clear action for relief against the defender, for the sums which they must have so laid out. They followed the more humane course of bringing their action at once against the defender in their own name. And it is impossible to see what detriment the defender suffers by being thus convened in a single action at the instance of the Parochial Board, instead of two actions, one for aliment by the pauper, and a second for relief of interim aliment by the Board.

The defender has now undertaken the support of Catherine Millar. It is hard, therefore, to anticipate any way in which he can hope to clear himself of liability for the bygones. But since the facts upon which this must depend are even still disputed, there is no alternative but to allow a proof, if he is imprudent enough to embark in it.

A proof having been led by both parties, and parties heard thereon, the Sheriff-Substitute (Macleod Smith) pronounced the following Interlocutor:

The Sheriff-Substitute having considered the closed record, proof adduced, and whole cause, Finds it admitted that on or about the 14th of February, 1860, Widow Catherine Millar, residing in Elgin, an old woman upwards of eighty years of age, the maternal grandmother of the defender, became legally chargeable, as a pauper, to the Parochial Board of Elgia, and that an allowance of 38 6d per week was made to her from the funds of the Board for some time from and after that date: Finds it admitted that on 21st February, 1860, intimation was made by the Board to the defender that his said grandmother had become chargeable to them as a pauper, and that the Board held the defender liable to them for all advances made by them for her support: Finds it admitted, that immediately or shortly after the said intimation was made, the defender offered to the Board to receive and maintain his said grandmother as a member of his family in his own house: Finds it admitted that the said offer was refused by the Board: Finds that the advances made by the Board to the said Widow Catherine Millar, previous to the date of the said offer by the defender, amounted to the sum of 3s 6d: Finds in law, that in a question with the Parochial Board, the defender was not bound to do more than to receive and maintain the pauper in his own house, that his offer to do so was wrongfully refused by the Board, and that the defender is not liable to the Board for her maintenance subsequently to the date of the said offer: Therefore decerns against the defender for the said sum of three shillings and sixpence, with interest thereon, in terms of the conclusions of the summons, but, quoad ultra, assoilzies him from the said conclusious: Finds him entitled to his expenses, allows an account thereof to be given in, and when lodged, remits the same to the auditor to tax and to report, and decerns.

NOTE. The grounds of the foregoing Interlocutor appear sufficiently from the findings.

The whole extent of the legal obligation on the Parochial Board towards paupers is to afford to them "needful sustentation." If the Board discovers relatives or other persous liable to maintain a pauper who has become chargeable to the Board, the Board has a claim of relief against such persons, but it is inherent in the nature of a claim of relief-the word "relief" being here used in its technical process sense-that it cannot be broader than the original liability. The whole liability of the Board to the pauper in this case being for "needful sustentation" to her, they can have no action against the defender for anything beyond "needful sustentation" for her. The defender having offered this in his own house and his own family, before the action was raised, the Sheriff-Substitute thinks that it was the duty of the Parochial Board to have at once accepted the offer, and that, in the event of the pauper being once received into the house and family of the defender, the functions of the Parochial Board in regard to her came to an end. It was wholly beyond their province to interfere further, or to attempt to impose conditions on the defender as to the domestic arrangements of his household.

The Board stated some objections to the residence of the

defender on the ground of its being a public house, and on other grounds, but the Sheriff-Substitute keeps in view that the residence offered by the defender to the pauper was at the same time the residence of the defender himself and his family. While this was the case, the Sheriff-Substitute cannot hold, even if the objections were stronger than they appear to have been, that the defender was bound to provide a better residence for the pauper than he had or was able to afford for

himself.

The reluctance alleged to have been at one time expressed by the pauper to reside with the defender, does not form any proper legal element in the determination of the case. The Board discharged its legal duty to the pauper in obtaining a maintenance for her from the defender, and the defender discharged his legal duty to the Board in offering, and being ready to afford such maintenance. The position of the pauper in this respect, if it be the fact that she at one time refused to reside with the defender, is very similar to that of the pauper in the case of Small v. Welch, 13th July, 1860, in which the pauper refused to be removed to the parish of her settlement, and in which the Court held that she had no farther legal claim to parochial relief as long as she remained in that position. The Board were not entitled to assume, from the feeling alleged to have been displayed by the pauper, that the defender would not give her proper treatinent. If he should not, there are other provisions of the law under which he might have been dealt with, but while on this point, the Sheriff-Substitute thinks it right to notice that there is evidence in process that the defender and his wife, when the pauper came into their hands, as she afterwards did, treated her with great kindness up till the time of her death.

pursuer at the rate of 3s 6d sterling a-week, from 14th February, 1860, to 20th July, 1861, to Catherine Millar, the defender's grandmother, with interest: Finds that the said aliment was paid by the pursuers: Finds that the pursuer, tempestive, required the defender to support the said Catherine Millar: Finds that the defender offered to receive her into his own house, but refused or delayed, and failed to contribute in any other way to her support until 20th July, 1861: Finds that Catherine Millar was most averse to living in the defender's house, and declined the offer made by him: Finds that the defender had sufficient means to enable him to afford the said Catherine Millar a separate residence: Finds, in point of law, that his offer was not one which, under the circumstances, Catherine Millar was bound to accept: Finds that the defender is bound to relieve the pursuer of the sums advanced by him to the defender's grandmother: Decerns in terms of the conclusions of the summons as restricted by the minute No. 22 of process: Finds the defender liable in the expenses of process: Allows an account to be given in, and remits it, when lodged, to the auditor to tax, and decerns.

NOTE. When relief is afforded by a parish to a poor person, the Sheriff is not entitled to interfere with the amount of aliment given, and when the poor person accepts and is satisfied with the kind of provision made for him by relations liable to support him, the inspector has no concern with the propriety of the understanding which may be entered into between those parties, and has no interest or standing to oppose or defeat their agreement. But none of these matters

arise here.

The defender's grandmother being incontestibly a proper object, applied to the pursuer for relief. The pursuer called The defender offered to upon the defender to support her.

mother to receive her into his own house, but that he was bound to provide her with a separate residence if able to do so, and that if the defender alleged, as he did, that he was unable to furnish her with a separate residence, the burden of proof of his inability to do so rested on himself. The cases

referred to were, however, actions of aliment raised directly at the instance of relative against relative, and the questions were adjudicated according to the circumstances and position in life of the parties. The aliment allowed to the paren, in the case of Jucksun v. Jackson was £60 a year; aud it the pursuer holds the principle of that case to regulate the present, it would be necessary for him to argue that if the income of the defender Buie, in the present case, were equal to that of the defender Jackson in the case of Jackson v. Jackson, the Parochial Board of Elgin would be entitled to insist on Buie giving an allowance of equivalent amount to the pauper in the present case. And hot only that, but it would, in a similar manner, be the duty of the Parochial Board to adopt the cause of every disabled and infirm person in the parish dependent upon their relatives, and to dictate to these relatives what amount of allowances they should make. The consequences to which this novel and rather alarming doctrine would lead, are sufficient to demonstrate the fallacy of the position assumed by the Board, and to show that interference in patrimonial questions betwixt relations are not within the scope of their duty (in itself sutficiently onerous and important) of supplying and of causing needful sustentation to be supplied by parties liable for it, to such persons as may be entitled under the statute to

such sustentation.

In fixing the amount decerned for, the Sheriff-Substitute proceeds on the statement in the account attacued to the suminous that relief at the rate of 3s 6d per week was commenced on 14th February, 1860, and on the statement in the defences, which is not met by any counter-statement on the part of the pursuer, that immediately on receipt of the intimation of 21st February, 1800, the defender made the offer founded on in the interlocutor.

This Interlocutor was appealed, and thereafter the Sheriff pronounced the following judgment:

The Sheriff recalls the Interlocutor appealed against: Finds, in point of fact, that the pursuer is inspector of the poor for the parish of Elgin: Finds that the summons, as restricted, concludes for relief of aliment advanced by the

It is proved that the defender was in circumstances which enabled him to afford his grandmother a separate maintenbeing made upon him by an ascendant not a descendant ance. Being able, he was legally bound to do so. The claim relation, it was no sufficient response to offer to receive her into his own house. See Jackson, 3d March, 1825, 111. S. 610, and 17th November, 1825, IV. S.; 186 and Whyte v Whyte, 10th March, 1829, VII. S. 567.

If an offer had been made to the grandmother, which she was bound to accept, such as an offer by the inspector to remove her to another parish, or to a poor house to which she was bound to go, that might have put an end to her claim on the parish of Elgin. But here there was made to her an offer by her grandson which she was not bound to accept, and not being bound to accept it, her failure to do so could not extinguish the defender's obligation.

In these circumstances, Catherine Millar, the grandmother, being unquestionably a proper object of relief, having indeed a claim against her grandson, the defender, but a claun which when preferred he refused to recognise except in a particular shape, a shape which she was not bound to accept of, and did not accept, applied to the pursuer for relief. The pursuer But there were could not legally reject her demand in toto two courses open to him to follow. He might either require Millar to bring her own action against the defender, and provide her with sufficient aliment until its issue, or else he might give her aliment in the meantime, and raise au action in his own name for relief. The pursuer chose the latter course, and whether or not it was the wisest, which the Sheriff thinks it probably may have been, it was at all events a competent course.

There are many cases which show that parties advancing aliment to paupers, have a direct action for relief against relations liable to support the pauper. Some of them apply directly to the inspector of poor, and the rest are applicable by analogy.

In the case of Watson, 7th March, 1828, and 28th Feb., 1829, VI. S. 736, and VII. S. 495, the applicant was required to proceed with an action against her relation. But that action was already raised before she applied to the parish at It was still in dependence. And the parish adopted the course of denying her claim to relief in toto. They were compelled by the Court to afford her aliment during the de

all.

pendence of her suit. And it by no means follows, from the circumstance that the parish was allowed to throw upon the applicant the onus of bringing to a termination the action which she had already raised, either that the parish could have no action against her relations for relief of the advances which they actually made, or that they might not, if they had so willed it, have given her relief at once and proceeded with an action at their own instance. Their right to adopt the course which they did, is no proof that they might not com petently have adopted that which has been followed in the present action. Indeed the decree requiring Watson to follow forth the action which she had first of all raised against her relation, expressly declares, "in which process the heritors and kirk-session of Ancrum shall be entitled to make appear

ance for their interest."

That parties affording aliment to paupers have a direct action against relations, is clear from the cases of Robert v. Fife, 5th February, 1825, III. S. 349, and 500; Weepers, 20th June, 1844, VI. D. 1166; Lumsden, 18th July, 1846, VIII. D. 1251; Orr, 9th July, 1881, IX. S. 928; Watson, 7th March, 1826, VI. S. 736, and 28th February, 1829, VII. S. 495; Wigton v. Dalzell, (Hume, 453); Garvald, 14th February, 1817; F. C. Hutton (10,574); Pollock, 12th November, 1829, VIII. S. I.; Rescobie (10,589); Howie, in App. poor, 1; Matthewson v. Hay, 4 Jurist 212; and Keay v. Watson, 19th February, 1825, ÏII. S. 561; and these are applicable to the case of an inspector of poor, some by analogy, some directly. But, as regards the inspector, it might have been enough to refer to the Poor Law Amendment Act, 71. And it is not thought that there is any speciality in the present case to deprive the pursuer of his recourse.*

Act. MURDOCH AND FORSYTH. Alt. ALEX. MORRISON.

12TH JANUARY, 1864.

SHERIFF COURT, ELGINSHIRE. (SHERIFFS B. R. BELL AND D. MACLEOD SMITH.)

WILLIAM TAYLOR, Inspector of Huntly, Pursuer, v. JAS. STRACHAN, Inspector of Bellie, and JOHN BROWN, Inspector of Urquhart, Defenders.

Parish-Pauper-Summons-Relevancy.-A wandering beggar, whose parish of settlement was unknown, was relieved by the inspectors of several parishes in which she happened to be. One of these parishes brought an action of relief against two other parishes who had relieved the pauper for repetition; but neither of which, it was alleged, was her parish of settlement-Held that there were no averments relevant and sufficient to support the conclusions, and action dismissed. Expenses-Counsel.-Reclaiming petition and answers were drawn by counsel. After final judgment, the Sheriff-Substitute was craved to approve of their employment-on his declinature, the Sheriff approved thereof, and found the pursuer liable in the costs of the appeal.

THE inspector of the parish of Huntly raised an action against the inspectors of the parishes of Bellie and Urquhart for repayment of certain sums advanced as relief to May Whyte or Cameron, a wandering beggar, who had no known settlement, but who had, previously to obtaining relief from the pursuer, obtained temporary relief from the defenders, while in their respective

*This case has been advocated, and the Interlocutor of the Sheriffs-Substitute reverted to.

parishes, for short periods. The facts are sufficiently set forth in the Interlocutors of the Sheriff and SheriffSubstitute, quoted below.

After final judgment by the Sheriff, the defenders, who had employed counsel to draw certain reclaiming petitions and answers, craved the Sheriff-Substitute to approve of the employment of counsel. The SheriffSubstitute held that he had no power to do so for the reasons stated by him in the Note to his Interlocutor, which was in the following terms:-"The question on which the craving of the minutes referred to has been refused, arises under sect. 23 of the Table of Fees annexed to the Act of Sederunt, 1st March, 1861. The Sheriff-Substitute has declined to entertain that craving, because he does not think it competent for him to supplement a final judgment of the Sheriff, by authorising expenses, not covered by the terms of that judgment, to be imposed on the pursuer. Moreover, the portion of the pleadings to which these expenses relate never came under the consideration of the Sheriff-Substitute."

This judgment was appealed, when the Sheriff approved of the employment of counsel referred to in the said minutes, appointed the account of expenses to be taxed with reference to that approval, and found the pursuer liable in the expenses of the appeal.

The following is the Sheriff-Substitute's Interlocutor on the merits:

The Sheriff-Substitute having considered the closed record, proof adduced, and whole cause, Finds that the pursuer has not made averments relevant and sufficient to support the conclusions of the summons against either of the defenders; therefore assoilzies them from the conclusions of the action: Finds no expenses due to any party, and decerns.

NOTE. This is a case in which the parish of Huntly sues alternatively the parish of Urquhart or the parish of Bellie, for the recovery of advances made by the parish of Huntly for the support of May Whyte or Cameron, a pauper.

The averments of the parish of Huntly, as stated in the closed record, are that the pauper in question came to the parish of Urquhart in the month of January, 1859, and applied for and received parochial relief from the inspector of that parish; and that about the end of January, 1859, she came relief from the inspector of that parish; that on or about the to the parish of Bellie, and applied for and obtained parochial 3d of February, 1859, she came to the parish of Keith, and obtained temporary relief from the inspector of that parish, been previously relieved by the inspector of Bellie, and in but that in consequence of his having ascertained that she had consequence of the Board of Supervision having expressed an opinion that she was chargeable to the parish of Bellie until her settlement could be ascertained, the inspector of Bellie repaid to the inspector of Keith the expenses incurred by him, and removed the said May Whyte or Cameron from Keith to the parish of Bellie on 12th March, 1859. The grounds on which the alleged opinion of the Board of Supervision was given, are not stated. It is farther averred by the parish of Huntly that on or about the said 12th day of March, 1859, the said May Whyte or Cameron was, by order of the inspector of Bellie, after being removed from Keith, conveyed to Urquhart, where she remained for several days; that on or arrived at Huntly in a state of destitution, and applied for about the 24th March, 1859, the said May Whyte or Cameron parochial relief to the inspector of that parish; that such relief was afforded to her, and continued to be afforded to her when said 24th March, 1859, the said May Whyte or Cameron was, the action was raised on 4th August, 1859, and that at the and thereafter continued to be, a fit object of parochial relief.

It is not alleged by the pursuer that the said May Whyte or Cameron had any settlement by birth or previous residence in either the parish of Bellie or the parish of Urquhart, or

that previous to January, 1859, she was not an utter stranger to both.

It is further specially averred by the pursuer in regard to the parish of Bellie, that in answer to a letter from the pursuer, the inspector of Bellie, on 11th April, 1859, wrote to the pursuer stating that "seeing that he (the inspector of Urquhart) refuses to relieve you, I hereby intimate to you that I admit in the meantime your claim of repayment from Bellie of all your advances to the above-named (May Whyte or Cameron) until I get relief from Urquhart, and you will oblige me by giving such weekly allowance as you would to a pauper of your own under similar circumstances." That some time after the receipt of this letter the pursuer wrote to the inspector of Bellie that he should remove the said May Whyte or Cameron from Huntly, and received from him in answer another letter, dated 27th April, 1859, in which he said, "I have not got the inspector of Urquhart to admit liability, so hope you will be so kind as to continue to keep her for some time." That the pursuer thereafter received another letter, dated 30th April, 1859, from the inspector of Bellie stating that on further inquiry into the circumstances of the case he refused the claim of the parish of Huntly, and denied that the parish of Bellie was liable for the same.

There is a reference made in the condescendence for the pursuer to certain correspondence produced, but the whole of his substantive averments have been set forth above upon these averments. The parish of Huntly maintained in law that under the Poor Law Act, sec. 70, which provides "that in every case in which a poor person in any parish shall apply for parochial relief, the inspector of the poor of such parish shall be bound to make inquiry forthwith into the circumstances of the applicant, and shall, notwithstanding such poor person may not have a settlement in the parish, if he be in other respects legally entitled to parochial relief, be bound to furnish him with sufficient means of subsistence until the next meeting of the parochial board; and such board shall continue to afford to such poor person such interim maintenance as may be adjudged necessary, until the parish or combination to which such poor person belongs be ascertained, and his claim upon such parish or combination admitted or otherwise determined, or until he be removed." And under sec. 71, which provides "that where in any case relief shall be afforded to a poor person found destitute in a parish or combination, it shall be lawful for the parochial board of such parish or combination to recover the monies expended in behalf of such poor person from the parish or combination within Scotland to which he may be ultimately found to belong, or from his parents or other persons who may be legally bound to maintain him;" either the parish of Urquhart or the parish of Bellie, in both of which it is alleged that the said May Whyte or Cameron had received parochial relief under section 70, was bound to repay the advances made to her by the parish of Huntly, and to relieve that parish of her future maintenance.

when she left the parish of Urquhart in January, 1859, and again in March, 1859, did so otherwise than of her own accord. In the absence of such allegation, the Sheriff-Substi tute must hold that her leaving on each occasion was her own spontaneous act. In the same manner the allegations as to her stay in the parish of Urquhart after her arrival there on 12th March, 1859, being that she "remained for several days;" and the allegation as to her arrival in the parish of Huntly being, that she arrived there on 24th March, 1859, the Sheriff-Substitute cannot even assume that when she finally left the parish of Urquhart, she went without an intermediate interval spent somewhere else, direct from that parish to the parish of Huntly. It not being alleged by the parish of Huntly that there was any tie betwixt the said May Whyte or Cameron, and the parish of Urquhart, except the circumcumstance of her having come to that parish, and received relief in the month of January, 1859; and again for a few days about the 12th of March, 1859, the Sheriff-Substitute holds that this tie, and the corresponding obligations laid on the parish of Urquhart for the benefit of the pauper, as long as the tie was maintained, were wholly severed and terminated by her leaving, of her own accord, the parish of Urqu hart sometime before her appearance in Huntly. But if the direct obligation on the parish of Urquhart, for behoof of the said May Whyte or Cameron, was thus dissolved by herself before the parish of Huntly had any concern with her, it is impossible that that parish can now have any claim against the parish of Urquhart, in her right or on her account. The Sheriff-Substitute does not therefore see how there can be any more claim by the parish of Huntly against the parish of Urquhart, than there is against the parish of Boleskine, where the said May Whyte or Cameron is said, in the defences for the parish of Urquhart, to have been relieved in May, June, July, and August, 1858, or against the parish of Kirkmichael, where she is alleged to have been relieved in December, 1858, supposing it to be the fact that she was so relieved.

If there be no legal obligation on the parish of Urquhart under sec. 70 of the Act, of course the parish of Huntly can have no right under sec. 71 to recover from that parish.

These observations apply a fortiori to the alleged grounds of the claims of the parish of Huntly against the parish of Bellie, except in so far as it is alleged that the Inspector of Bellie, on the 11th and 27th April, 1859, made a qualified admission, which he afterwards retracted, of the claim of the parish of Huntly. Apart from this, the parish of Huntly and the parish of Bellie have not, upon the averments of the parish of Huntly, any legal relation to or connection with each other in the matter-the parish of Urquhart being in regard to the present question, locally and circumstantially interposed between them in every respect.

With regard to the admission said to have been given by the inspector of Bellie, such an admission was plainly ultra vires of him. An inspector of the poor is a public officer, whose duties are presumed to be known to every one, and it ought, therefore, to have been known to the pursuer, that in a matter of this kind, the inspector of Bellie had no power to bind his constituents without their authority. This action being substantially directed against the Parochial Board of Bellie, although the Board is sued under the name of the inspector, it was necessary not merely to aver and show that the admission founded on was granted by the inspector on their behalf, and with their authority, but also that the claim is one for which the parish is truly liable in law. Neither of such averments having been made, the Sheriff-Substitute holds the action on this ground also to be irrelevant.

The Sheriff-Substitute, for the reasons above stated, has considered it his duty to assoilzie both of the defenders, but in respect that no special pleas were stated by them, applicable to the grounds of relevancy on which the foregoing Interlocutor has been pronounced, they have not been found entitled to expenses.

The pauper having died, as stated in the minute No. 37 of process, the examination directed by the Sheriff has of course been rendered impossible.

Against this the pursuer appealed as to the judgment on the merits, and the defenders appealed on the question of expenses. The Sheriff ordered reclaiming petitions and answers, and pronounced the following In