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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - The Inspectors of Poor of the Parishes of St Cuthbert's and Cramond [1873] ScotLR 11_64 (12 November 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0064.html Cite as: [1873] ScotLR 11_64, [1873] SLR 11_64 |
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A pauper born in B parish, removed with his parents when two years old to A parish, in which his father acquired a residential settlement. The father died, and the mother after having been for some years chargeable on A parish, married again. The pauper having become insane, without previously acquiring any other residential settlement,— held that A parish was chargeable for his support.
This Special Case was submitted for the opinion and judgment of the Court by the Inspectors of the parishes of St Cuthbert's and Cramond. William Gardiner, the pauper whose settlement was the subject of dispute, was born on 18th July 1853 at Granton Mains, in the parish of Cramond, where his father was then residing. The pauper's father removed at Whitsunday 1855 into St Cuthbert's
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parish with his family, and he and they continued to reside in that parish till 1860. On 12th September in that year the father died, having thus acquired a settlement by residence in St Cuthbert's, in virtue of which his widow and five children (of whom the pauper was one) became chargeable to that parish on 3d October 1860, and continued so until 6th March 1863. At this date Gardiner's widow married James Brownlee, a labourer. Since this second marriage she has resided in St Cuthbert's; but ever since September 1863 her husband has resided apart from her, in regular employment in various parishes other than St Cuthbert's, and has visited her only about four times a year for a few hours at a time. Brownlee was born in the parish of Whitburn, and, at the date of his marriage, did not possess, and has never since acquired, any residential settlement in any other parish. The pauper (William Gardiner) continued to reside with his mother after his father's death until 10th February 1871, when he enlisted in the 8th Hussars, being at that time of the age of seventeen years and seven months. From the time of his mother's second marriage he had earned 2s. 6d. a-week for some time as a message boy, and thereafter, in various employments, from 5s. to 8s. a-week, until he enlisted. After serving ten months with his regiment in Dublin, he was discharged as unfit for service, and became chargeable on St Cuthbert's as a pauper lunatic on 14th September 1871, at which date he was eighteen years and five months old. He was placed in the Royal Edinburgh Asylum by the parish, to which he continued to be chargeable until 19th May 1872, when he was removed by his mother. Becoming again chargeable on 13th August 1872, he was again removed to the Royal Edinburgh Asylum, where he still remained chargeable to the parish. For the purpose of the case it was admitted that liability to support the pauper rested either upon the parish of St Cuthbert's or that of Cramond; but it was maintained for St Cuthbert's—(1) that the settlement which the pauper might have had in that parish at the date of his father's death came to an end either in 1863 by his mother, with whom he lived and on whom he was dependent, having then lost a settlement in St Cuthbert's both for herself and him, or in 1867, by the pauper attaining the age of puberty; (2) that his second residence in St Cuthbert's until he left it in 1871 was in itself insufficient to give him residential settlement therein; and (3) that his residence in St Cuthbert's while in pupillarity could not competently be combined with his residence after puberty, so as to entitle him to a residential settlement therein. The Counsel for Cramond parish, on the other hand, maintained that St Cuthbert's was liable, in respect that the pauper had, when he became chargeable to that parish, a residential settlement therein.
Authorities— M'Lennan v. Waite, 10 Macph. 908; Greig v. Adamson, May 2, 1865, 3 Macph. 575; Kirkwood v. Mann, 9 Macph. 695; Craig v. Greig & M'Donald, July 18, 1865, 3 Macph. 1172; Hume v. Pringle, 12 D. 411.
At advising—
The question raised by this Special Case is, Whether, in the circumstances set forth, the parish of St Cuthbert's—the alleged residential settlement of the pauper—or the parish of Cramond—the birthplace of the pauper—is liable for his support?
Although born in Cramond parish in July 1853, the pauper removed with his parents at Whitsunday 1855 to the parish of St Cuthbert's. His father died in September 1860, at which date the pauper, then living in family with his parents, was still in pupillarity. His mother, then a widow, became chargeable to the parish of St Cuthbert's in October 1860, with five children, including the pauper, and continued to be chargeable until March 1863, when she married a second husband, James Brownlee, whose settlement is admitted to have been Whitburn, the parish of his birth, but against which the parties concur in stating no claim lies. Notwithstanding her marriage, the pauper's mother continued to reside, and still resides, in St Cuthbert's, her second husband having work elsewhere, in several districts, and visiting his wife only on rare occasions, about four times a year, and then for a night at a time. The pauper continued to reside with his mother in St Cuthbert's from his father's death in 1860 until February 1871, when he enlisted in the army, being then seventeen years and seven months old. He served with his regiment for a period of only ten months, and became chargeable to St Cuthbert's as a pauper lunatic in December 1871.
These are the material facts—and, first, it is certain that on the death of the pauper's father in 1860 he had acquired a residential settlement in the parish of St Cuthbert's; second, it is also certain that this settlement innured to his widow and family, and that in affording them relief till the widow's second marriage in 1863 St Cuthbert's discharged only its legal obligation; third, that although the mother's second marriage transferred her settlement to her second husband's parish from St Cuthbert's, the fact of her residence with her family, including the pauper, having continued uninterruptedly in that parish, establishes that the residential settlement acquired by his pupil children through their father in St Cuthbert's, was not destroyed through want of residence in the parish; and fourth, the facts farther establish that no other residential settlement was acquired by the pauper through his mother—her residence having all along continued to be in St Cuthbert's.
The propositions contended for on the part of the parish of St Cuthbert's are set forth in article 11 of the Special Case. It is not disputed by Cramond that the second and third pleas there stated are well-founded. It is the first proposition maintained by St Cuthbert's which raises the question between the parishes. That at his father's death the pauper had a residential settlement derived from him in St Cuthbert's is certain; but this settlement, it is said, was lost either by his mother's second marriage in 1863, or by the pauper attaining the age of puberty in 1867. As regards the first contention, no authority is referred to in support of it. Although it has been decided that a mother may after the father's death acquire by residence for five years a residential settlement which will enure to their children, there is no authority for holding that if no such new settlement by residence has been acquired, her pupil children lose their derivative residential settlement through the father by the mere fact of her second marriage: This view was not pressed at the discussion: The argument maintained was that on the pauper attaining the age of puberty in 1867, the father being dead, the derivative residential settlement came to an end, and that, consequently,
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It must be kept in view that the residential settlement which pupil children living with their father acquire derivatively from him becomes their settlement in their own right, and any question occurring after the father's death as regards the retention or the loss of such residential settlement, is to be judged of on that footing. Throughout the decisions, and especially from the case of Lasswade downwards, this has been recognised in the opinions of all the Judges by whom those decisions were pronounced. And therefore, when the question arises under the 76th section of the statute, either as to the acquisition of a residential settlement, or as to its non-retention or loss, the same principles are to be regarded in its solution, whether it is the personal residence of the pauper himself on which the settlement depends, or the settlement of the pauper's father, from whom derivately it has been acquired by the pauper. And I am not aware of any authoritative opinion until very recently pronounced to the contrary.
The case of Adamson v. Barbour, as decided in the House of Lords in 1854, on social considerations very fully explained by the Lord Chancellor and Lord Brougham, negatived the views which had been taken in this Court, that where the father of a family is dead, or has deserted them leaving them in poverty, that a distinction prevailed between residence and birth settlements. It was found that the whole family of pupil children and their mother, wherever born, fell to be supported by the father's parish, whether his settlement was derived from residence or from birth. I do not find, however, that, excepting in that class of cases, all distinction between derivative settlement was by that judgment put an end to. On the contrary, there have been repeated decisions since that judgment recognising the principle that a derivative residential settlement continues with the child acquiring it until it has been lost under the 76th section of the statute through non-residence, or until a new settlement has been acquired through the child's own residence in another parish. The case of Hume v. Halliday, in 1849, affords an apt illustration. There the derivative residential settlement was held to have been lost through non-residence for the period required by the statute, and on that ground the parish of birth was found liable. And it may be noticed that in the Lord Ordinary's interlocutor, to which the Court adhered, the residential settlement acquired by the pauper through the father is expressly stated to be “in his own right and as his own proper settlement;” and Lord Jeffrey in reference to the same matter states “that it is actual residence,” and not properly derivative by presumption of law. The cases also of Allan v. Higgins, 1864, and Beattie v. Adamson, 1866, proceed upon a recognition of the same principle; and I may farther refer to the case of Fraser v. Robertson, June 5, 1867, which, having regard to the circumstances of the case, could not have been decided as it was except upon principles altogether hostile to the views contended for on the part of St Cuthbert's. The note of the Lord Ordinary ( Kinloch) and the opinion of the Judges of the Second Division are quite in accordance with the other decisions to which I have referred.
The cases on which the argument for St Cuthbert's was mainly founded were (1) that of Craig, in July 1863, (2) the case of M'Lennan, June 1872, and (3) the case of Ferrier v. Kennedy, Feb. 1873. Now the first of these cases was a competition between the birth parish of the father and the pauper's birth parish, and though in the other two cases opinions were expressed which appear to go the length of holding that a minor pubes and forisfamiliated cannot found on any derivative settlement from his father, whether that settlement be by residence or birth,—I cannot hold that question to have been decided by the case of Craig, while, as your Lordship has fully explained, the decisions in those other cases are capable of being arrived at on other grounds.
On the whole, in the circumstances of this case, I think judgment must be given against St Cuthbert's.
The
The Court pronounced the following interlocutor:—
“Find that the parish bound to support the said pauper is the parish of St Cuthbert's; and find the parish of Cramond entitled to expenses.”
Counsel for Inspector of St Cuthbert's— "The Dean of Faculty (Gordon) Q.C., and "Marshall. Agent— E. Mill, S.S.C.
Counsel for Inspector of Cramond— "Watson and "Burnet. Agents— W. & J. Burness, W.S.
