Scottish Court of Session Decisions

Subject_1 POOR.

Kirk-Session of Rescobie,
v.
Kirk-Session of Aberlemno, Kirk-Session, of Dunnichen, and Kirk-Session of Forfar

Date: 28 November 1801
Case No. No 19.

A bastard child is to be maintained by the parish where the mother has been domiciled for three years previous to it is birth.

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In the month of September 1800, a child about two years of age was exposed at the door of a house in the parish of Rescobie. While the child was taken care of in the mean time by the kirk-session of that parish, it was found that the child was born in the parish of Aberlemno: That his father was unknown: That his mother, Agnes Allan, was unable to maintain him, and was a vagrant: That during the earlier part of her life, she had resided in the parish of Dunnichen; but that during the five or six last years, she had principally haunted the town and parish of Forfar.

In order to determine who were bound to maintain the child, the kirk-session of Rescobie called the other three kirk-sessions of Aberlemno, Dunnichen, and Forfar, in an action of relief before the Sheriff of Forfar; who, after allowing a proof to all parties, pronounced this interlocutor, 25th March 1801, ‘Find, That the kirk-session of the parish of Aberlemno is bound to take charge, and to free and relieve the pursuers of the custody of the child mentioned in the petition; and that the said kirk-session is bound to make payment to the pursuers, in name of the kirk-session of Rescobie, of the expense which they have already disbursed, on account of the said child; and appoints an account thereof to be given in; assoilzies the kirk-session of Forfar; finds no expenses due; and decerns accordingly.’

A bill of advocation was presented; on advising which, (4th September 1801) Lord Meadowbank ‘took the case to report, and ordered memorial.’

When the question is with regard to the maintenance of an adult person, who, by old age, disease or misfortune, has been reduced to want, the rule which has been established is, that the parish where he has resided principally for the last three years, when able to earn his subsistence by his industry, must bear the burden of supporting him; Parish of Dunse contra the parish of Edrom, 6th June 1745, No 3. p. 10553.; Baxter contra Parish of Crailing, 7th August 1767, No 8. p. 10573.; Waddel contra the Heritors of Hutton, 14th June 1781, No 14. p. 10583.; Runciman contra the Heritors of Mordington, 24th January 1784, No 15. p. 10583.; insomuch that a dancing-master, who had no fixed residence any where, but frequented various parishes, was found entitled to support from that parish where, for three years, he had taught dancing during the winter months, although during these months he merely lodged with a householder, and for public teaching occasionally hired a room in the inn; 18th December 1800, Parish of Dalmellington contra Magistrates of Irvine. (Not yet reported; See Appendix.)

With regard to the maintenance of a child which may not have lived three years, the term required by law to fix a residence, it should seem that the strongest connection with any place which the child has been able to form should regulate where the burden of his maintenance should be imposed, and it seems just that the place of nativity should be the rule. But the child is not to be viewed altogether as an individual, but as a member of its parent's family. These two circumstances have varied the decisions upon this point. If the parish of the child's birth, and of the parents residence, be the same, that must bear the burden of the maintenance of the child; Kirk-session of Inveresk against Tranent, 3d March 1757, No 7. p. 10571. If, on the other hand, they be different, the place of the parents residence for the last three years has been considered as the stronger connection, and that has been made liable for the aliment of the child accordingly; Parish of Coldingham against Dunse, No 13. p. 10582.; Buick against Parish of St Vigean's, 25th January 1800. (Not yet collected; See Appendix.) Again, though the parent may not have acquired a legal residence in the parish where his child was born, still his residing there for one or two years, combined with the birth of the child, has been found to subject the locus originis of the child, and to exempt the parish where the parent himself would have been alimented; Parish of Melross against Bowden, 24th January 1786, No 16. p. 10584.

Though, in the case of this child, the mother was a vagrant, her principal haunt or place of residence had been the burgh of Forfar for five of six years past. There she had at different times occupied two rooms, and had frequently been seen during that time walking about the streets of the town with her child. From the principles recognised in the case of the Magistrates of Irvine, (mentioned above) she would have been entitled to claim aliment from Forfar for herself; and the parish, bound to maintain the mother, must also maintain the child, according to the cases of Dunse and St Vigean's.

It occurred to one of the Judges, that a person pursuing no line of industry, could scarce acquite a legal residence in any place, having no status or situation of life there; but it was observed, that a legal residence may be obtained by a person not following any industrious occupation by residence alone; and that the parish must support such a one when he falls into indigence, as they had themselves to blame for permitting a vagrant to remain so long among them, as the act 1672, c. 18. was enacted, to afford relief from such oppression.

The Lords ‘found, That the parish of Forfar is bound to reliever the parish of Rescobie of the maintenance of the child.’

Lord Ordinary, Meadowbank. For Rescobie, Reddie. Agent, Ja. Robertson, W. S. For Dunnichen, Monypenny. Agent, Alex. Cunningham, W. S. For Forfar, Inglis. Agent, William Inglis, W. S. For Aberlemno, Baird. Agent, Pat. Orr, W. S. Clerk, Sinclair. Fac. Col. No 7. p. 14.