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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ferrier v. Kennedy [1873] ScotLR 10_257 (8 February 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0257.html Cite as: [1873] SLR 10_257, [1873] ScotLR 10_257 |
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Page: 257↓
Held that a minor is emancipated by the death of his father, and has no claim against the parish of his father's residential settlement.
This was a Special Case For Andrew Ferrier, Inspector of Poor for The parish Of New Monkland, And For D. M. Kennedy, Inspector of Poor for The Parish Of Auchinleck.
The facts of the case were as follows:—John Syme, the pauper whose settlement was the matter in dispute in this case, was born on 2d August 1841, at Clarkston, in the parish of New Monkland,
Page: 258↓
where his father then resided. In the year 1846 the father, with his family, including the said John Syme, removed from Clarkston to Lugar, in the parish of Auchinleck, where he resided until his death on 11th April 1860. At the date of his death, he (the said John Syme's father) had a settlement by residence in Auchinleck. On 8th May 1860 the said John Syme enlisted at Kilmarnock, and he thereupon left Scotland, and remained with his regiment on foreign service until the month of February 1872, when he was discharged as unfit for service in consequence of sun-stroke. Upon his discharge he returned to Scotland, and there he became chargeable as a pauper to the parish of Kilmarnock in February 1872. John Syme was unmarried, and during his absence from Scotland on foreign service, from 1860 to 1872, he had no house or place of residence in the parish of Auchinleck. It was admitted that the pauper had no settlement in the parish of Kilmarnock, and the question submitted to the Court was, whether the parish bound to support the said pauper was the parish of Auchinleck or the parish of New Monkland.
It was argued for the parish of New Monkland that the pauper had a settlement in Auchinleck. His father had on his death a residential settlement there, and this settlement passed to his minor son (the said John Syme), who was not forisfamiliated, but was living in family with his father. The pauper did not loose that settlement by non-residence, because (1) he only resided in this country three weeks after his father's death before he enlisted and went abroad; and (2) his residence abroad was not the kind of non-residence by which a settlement is lost, it being compulsory absence on military service.— Greig v. Miles and Simpson, July 19, 1867, 5 Macph. 1132; Craig v. Greig and Macdonald, July 18,1863, 1 Macph. 1172; Thomson v. Morris, July 19, 1850, 12 D. 1266; Lasswade, Kirk Session of, v. Newlands, Kirk Seslion of, March 4, 1844, 6 D. 956; Hume v. Pringle, Dec. 22, 1849, 12 D. 411; Robertson v. Melville, Feb. 24, 1860, 22 D. 892; M'Lennan v. Waits, June 28, 1872, 44 Jur. 496.
It was argued for the parish of Auchinleck that the parish of the pauper's birth was liable. The pauper being a minor at the time of his father's death did not take the residential settlement which his father had, but, being forisfamiliated by the death of his father, had after that no settlement but his own. Even if the father's settlement had passed to the pauper, he had lost it by non-residence, for the Poor Law Act made no distinction between non-residence in this country and nonresidence through residence abroad.
At advising—
That, however, is not sufficient to enable us to give judgment in this case, but we must examine the facts.
When his father died the pauper was between eighteen and nineteen years old, and his father had at the time of his death aresidential settlement in Auchinleck. It further appears that a few weeks after his father's death the pauper enlisted and went on foreign service, where he remained for nearly twelve years. It is not stated that after his father's death the pauper resided with his mother; if he had done so that might have made a difference.
I am of opinion that upon the death of his father the pauper was necessarily emancipated, and that at the date of his emancipation his settlement was in the parish of his own birth. I conceive that the principle laid down first in Craig v. Greig and Macdonald, and in M'Lennan v. Waite, is conclusive. I said in the latter case that “a person who has no residential settlement in his own right is chargeable on the parish of his own birth if he is above the age of puberty; and as soon as he does attain the age of puberty, his father being dead, his settlement is in his birth parish in preference to any derivative settlement which he previously had.” I am quite prepared to repeat that opinion, and when I delivered it I understood the Court to concur. That rule is directly applicable in the present case, and the parish of the pauper's birth, that is the parish of New Monkland, is bound to support this pauper.
But that is not the case here, and the effect of the father's death was not to pauperise his family, or at least his son, with whom we are now dealing; but one effect of the father's death was undoubtedly to emancipate the son. It is not stated whether the son maintained himself during the three weeks between his father's death and his own enlistment, but it is not said that he did not do so; so, if we take the case to be that the son fell into poverty at the end of the three weeks, and not twelve years after, still he would fall into poverty after emancipation, and would have to go upon his own parish. In the case of M'Lennan v. Waite there was no doubt thrown on that doctrine by Lord Kinloch, whose opinion I adopted. What Lord Kinloch wanted to guard against was the stringent application of the rule to the case of a family being pauperised when part of the mother's family. But in a case of this sort, when there is no pauperism at the date of emancipation, the person afterwards becoming pauper must go upon his own parish, and in this case it is the parish of his birth.
It is not necessary to deal with the question whether a residential settlement is lost by military service abroad.
Page: 259↓
The first is, that actual pauperism only took place in 1872, when the pauper was thirty years of age, and the time of poverty is the true time to look to in order to ascertain what the pauper's settlement is. The second fact is, that this pauper was nearly nineteen years of age when his father died.
If when his father died the pauper had been a pupil, it would have been very important to know when the mother died, for a pupil has no settlement of his own—a pupil is not a pauper but a burden upon his parent. But when the pupil becomes a minor he has the capacity to acquire and hold a settlement for himself. So when the minor is forisfamiliated by the death of his father, he is no longer a member of his father's family, but sui juris, and must go on the parish of his own settlement. In this case the only settlement of his own which the pauper ever had is the parish of his birth, and that parish is chargeable.
It is not necessary to enter upon the question of absence, but no case has been yet decided to support the proposition that a man without home or family in this country can retain or acquire a settlement here by residing abroad.
The Court held that the parish of the pauper's birth was bound to support the pauper.
Counsel for the First Party— Black. Agent— Curror & Cowper, S.S.C.
Counsel for the Second Party— Watson and Balfour. Agents— Webster & Will, S.S.C.
