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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hewat v. Hunter [1866] ScotLR 2_175 (6 July 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0175.html Cite as: [1866] ScotLR 2_175, [1866] SLR 2_175 |
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Page: 175↓
Held that absences from a parish for several months at a time in the course of the year by a person engaged in service, even although he had a house and a wife and children resident in the parish, interrupted the continuity of his residence so as to prevent him acquiring a settlement by residence under the 76th section of the Poor Law Amendment Act.
This is an advocation from the Sheriff Court of Kirkcudbright. The advocator, inspector of the parish of Kelton, sued the respondent, inspector of the parish of Tongland, for the sum of £12, 5s., being the amount of aliment advanced to a pauper who had become chargeable on the parish of Kelton, and for future sums to be expended on his maintenance. The pauper was born in the parish of Tongland. In 1856 he removed to the parish of Kelton with his wife and family, and they resided there continuously until 1864, when he became chargeable upon Kelton. Between these dates the pauper had been absent for considerable periods at a time from the parish of Kelton. In Martinmas 1856, the date of his removal to Kelton, he went to service in Buittle parish, and after residing there for about a year he returned to Kelton. In 1858 he went to the parish of Kirkgunzeon, where he was engaged from March to August, and was employed until the 1st of May at any farm work he was told to do. Between March 1858 and August 1862 he entered into and fulfilled several separate contracts of service for periods of three, four, or five months duration in different parishes. During the currency of these contracts he never visited or resided in the parish of Kelton, except for a day or a night occasionally, and with his master's permission. In these circumstances, the question was, whether the continuity of the pauper's residence in the parish of Kelton for the five years subsequent to Martinmas 1857 was effectually interrupted by his residence in these other parishes? The Steward-Substitute held that it was, whether as regards the nature or duration of the absences, and accordingly found Tongland, as the parish of his birth, liable. The Sheriff altered, holding that the pauper must be held to have resided for five years continuously in the parish of Kelton prior to becoming chargeable in the sense and meaning of the 76th clause of the Poor Law Act. The inspector of Kelton advocated.
A. R. Clark and Guthrie Smith for him argued—By residence the statute means personal presence in the parish—not the tenancy of a house by one's wife and family when he is living elsewhere. The doctrine of constructive residence
Page: 176↓
The Solicitor-General and Balfour, for the respondent, supported the interlocutor of the Sheriff, maintaining that the pauper's absences from the parish of Kelton were incidental only to the nature of his occupation, and could not be held to interupt the continuity of his residence.
At advising—
The Lord Justice-Clerk—It appears to me to be impossible to support the judgment of the Sheriff. The period during which the pauper is said to have acquired a residential settlement in Kelton extends from Martinmas 1857 to Martinmas 1862, and that period is selected for obvious reasons, because if the respondent had begun earlier, he would have landed at a time when the pauper was not in the parish at all. Proceeding, therefore, to examine this period of five years which the respondent has been driven to select, we find that from Martinmas 1857 to Martinmas 1858 the pauper resided half a year in the parish and a half out; and if we take the period of eighteen months instead of a year, we find that he resided six months in the parish and twelve months out of it. In subsequent periods the terms and extent of the residence are of longer duration; but pervading the whole extent there is a constantly recurring absence. Thus he was absent for four months in 1860, and five months in 1861; again, in the winter of 1860–61, he was away for four months, and in the summer for three months. It seems to me that it is quite impossible to account for these frequent periods of absence in such a way as to be able to say in any reasonable way that there has been de facto a continuous residence; and if we cannot say this, then there has not been such a residence as is required by the 76th section of the statute. The only intelligible way in which I can understand the Sheriff's judgment is that he appears to have thought that the pauper maintained the continuity of his residence by means of the residence of his wife and children. If this be so, I think it right that such an idea should be at once and authoritatively rejected. I am of opinion that what the statute means by residence is personal residence, not the mere possession of a residence; and the only relaxation of this rule is that kind of absence which arises from the ordinary occupations of every human being—such a kind of absence as either accidentally or incidentally must necessarily occur from time to time in the life of every one; but that is not at all the case here. The pauper's repeated absences were for the most part occasioned by his entering into contracts of service which thus made his absence compulsory. On the authority of Beattie v. Leighton, which I think is conclusive on this point, I am quite clear that where as here a person shifts the scene of his industry for six or seven months at a time, this is a clear interruption of the continuity of residence required by the statute.
The other Judges concurred, and the judgment of the Sheriff was accordingly reversed.
Solicitors: Agent for Advocator— W. S. Stuart, S.S.C.
Agent for Respondent— Murray & Beith, W.S.
