Scottish Court of Session Decisions

The Rev. James M. Pithie, Inspector of Poor of the united parishes of Tullynessle and Forbes, brought an action in the Sheriff Court of Banff against James Primrose, Inspector of Poor of the parish of Rothiemay, and John Milne, Inspector of Poor of the parish of Newhills, for payment of sums advanced and for relief of future advances for the maintenance of Mary Ann Middleton Taylor, a pupil illegitimate pauper.

The pursuer averred that Barbara Taylor, the mother of the pauper, was born at Coldhome in the parish of Rothiemay on 14th May 1861, that her illegitimate child was born in August 1881, that sometime thereafter Barbara Taylor was married to Alexander Mackie, farm-servant, but that she died soon after the marriage survived by her husband. He further averred that in December 1887 application was made to him for parochial relief on behalf of the said Mary Ann Middleton Taylor, who was then residing in his parish with a sister of her mother, that the pauper was a proper subject of parochial relief, the residence of her reputed father being unknown, and that the pursuer had advanced the sum of £5, 7s. 6d. for her relief. Alexander Mackie had a birth settlement in the parish of Newhills.

The Inspector of Poor of the parish of Newhills admitted the pursuer's averments, but refused to admit liability, on the ground that the derivative settlement which the deceased's mother had through her husband in the parish of Newhills while she was alive did not inure to her child after her death, and that her death had the effect of relieving the husband and the parish of the husband's settlement.

The Inspector of Poor of Rothiemay admitted pursuer's averments, but averred that the parish of Alexander Mackie's birth settlement was liable for relief.

The pursuer pleaded, inter alia—“(1) In respect that the mother of this pupil illegitimate pauper had a settlement by birth in the parish of Rothiemay, the pursuer is

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entitled to decree as craved against the said James Primrose. (2) Or otherwise, in respect the pauper has a settlement in the parish of Newhills, derived from the husband of her deceased mother, the pursuer is entitled to decree as craved against the said James Milne.”

The defender Primrose pleaded, inter alia—“(1) The pauper being a pupil child, can have no settlement in Rothiemay in respect of her own birth. (2) The pauper being an illegitimate pupil child, her settlement is derived from her mother. (3) The pauper's mother having acquired a settlement in the parish of Newhills, in consequence of her marriage with Alexander Mackie, the pauper derived from her a settlement in the same parish, and could not lose it.”

The defender Milne pleaded—“Where an illegitimate pupil child becomes chargeable as a pauper upon the death of its mother, who at the time of her death was married to a man not its father, the parish liable is not the husband's parish, but the parish of the mother's settlement at the time of her marriage, and therefore this defender, Milne, is entitled to absolvitor with expenses.”

A joint-minute was lodged by the parties admitting that the pursuer was entitled to his advances, and that the only question which fell to be determined was the liability of the defenders inter se.

On 14th January 1889 the Sheriff-Substitute ( Grierson), after finding the facts above set forth, found in law, “under reference to the subjoined note, that the pauper has a settlement in the parish of Newhills: Therefore sustains the second plea-in-law for the pursuer; decerns against the defender John Milne, inspector of poor of the parish of Newhills, in terms of the conclusions of the summons; assoilzies the defender James Primrose, inspector of poor of the parish of Rothiemay, from the said conclusion.

“ Note.—Alexander Mackie, who has a birth settlement in the parish of Newhills, married Barbara Taylor. Before her marriage Taylor had an illegitimate daughter. The child was born in August 1881, in the parish of Rothiemay. The mother died, and in December 1887 application was made on behoof of the child for parochial relief, and the question arose whether the liability rested with the parish of Rothiemay, where she was born, or with the parish of Newhills, in which her mother's husband had a birth settlement.

In the case of Hay v. Thomson, February 6th, 1856, 18 D. 510, Lord Colonsay says—‘The sound principle is that in law an illegitimate child is part and parcel of the mother, just as a legitimate child is part and parcel of the father. The sole question to be determined then is, what was the mother's settlement.’ ‘For the settlement acquired by her is acquired to the exclusion of all others,’ and what is her settlement is her illegitimate child's settlement. Now her settlement is that which she derived from her husband. But it was argued that the fact of her death made a difference; but it has been held in a question between legitimate children and their father that his desertion does not free the parish in which he has a settlement from liability to relieve them.

The same principle has been applied where the father was transported, and in Barbour v. Adamson, July 2, 1851, 13 D. 1279, May 30, 1853, 1 Macq. 376, the Judges in the Court of Session, and the Lord Chancellor in the House of Lords, treated his death as an analogous case.

It is true that these principles were applied in the case of the father of legitimate children, but in the case of Caldwell v. Dempster, July 20, 1883, 10 R. 1262, it was laid down that they were equally applicable in the case of the mothers of illegitimate children.”

The Inspector of Poor of Newhills appealed to the Sheriff ( Guthrie Smith), who on 10th April recalled the Sheriff-Substitute's interlocutor, and found that Rothiemay was the parish liable.

“ Note.—In this case the Sheriff-Substitute has held that the pauper is chargeable not to the parish in which she was born, or the parish in which her mother was born, but the parish in which her stepfather was born. If the stepfather had died and the mother had survived, I could understand it, for then the mother would have been the pauper, and she would have taken the husband's settlement at the date of his death for herself and all claiming through her. But when it is the mother that is first taken away, it is the child herself who becomes the pauper, and were she a legitimate child she would be chargeable to the parish in which her father, or failing the father, her mother, had a settlement at the date of the second marriage. The cases admittedly are very difficult to reconcile, but this is the result I think, to which they lead. In particular St Cuthbert's v. Cramond, 1 R. 174, Beattie v. M'Kenna, 5 R. 737, and Simpson v. Miles, 10 R. 928, prove that the mother's second marriage does not affect the settlement of the pupil in the case of a legitimate child, and I see no reason for applying a different principle when the child is illegitimate.”

The Inspector of Poor of Rothiemay appealed to the Court of Session, and argued—-It being settled by the case of Hay v. Thomson, February 6, 1856, 18 D. 510, that an illegitimate child takes its mother's settlement, however that may have been acquired, the only question in the present case was whether the death of the mother made any difference, on which see Beattie v. M'Kenna, March 8, 1878, 5 R. 737; Hendry v. Mackison and Christie, January 13, 1880, 7 R. 458. A pupil child could neither acquire nor lose a settlement, and so in the present case the settlement of the pauper being that of its mother, and she taking the settlement of her husband, the pauper child did not by its mother's death lose its derivative settlement, which was the settlement of its mother's husband, the parish of Newhills— Caldwell v. Dempster, July 20, 1883, 10 R. 1263.

Argued for the respondent, the Inspector

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of Poor of the parish of Newhills—There was no tie between the pauper and the husband of her mother, so as to make the parish of her settlement liable in relief. Any liability arising from the pauper's mother having through her marriage a settlement in Newhills terminated at her death, and the parish liable in relief was the parish where the mother had a settlement at the date of her second marriage— Greig v. Adamson, March 2, 1865, 3 Macph. 375; St Cwthbert's v. Cramond, November 12, 1873, 1 R. 174.

At advising—