Scottish Court of Session Decisions

On 10th September 1889 Elizabeth M'Phedran or Jenkins or White, a person of no fixed residence, and a proper subject of parochial relief, was found by the police in Dumbuck Wood in the parish of Old Kilpatrick in an extremely exhausted condition, and suffering from the effects of poison which she had taken with the intention to commit suicide. She was removed to Dumbarton Combination Poorhouse, as that was the nearest refuge. On 10th September Dumbarton parish claimed relief from Old Kilpatrick parish for the amount they had expended upon the pauper's maintenance. Old Kilpatrick denied liability, and the Inspector of Poor of Dumbarton brought an action in Sheriff Court at Dumbarton to enforce the claim, on the grounds (1) that the pauper was found destitute in Old Kilpatrick, and (2) that that parish was the parish of her birth. The birth settlement was admitted. From proof it appeared that the pauper was married first to Joseph Jenkins, sometime Chief-Constable of Dumbartonshire, and resided in Dumbarton with him for some years. He resigned his office in 1885, and went to live at Coldingham, Berwickshire. He died there the same year. The widow continued to live at Coldingham in a house of her own, but she fell into very dissipated habits, and went through an irregular marriage per verba de prcesenti with William White, a travelling basket-maker.

The pursuer set forth the irregular marriage, and alleged that White, the pauper's husband, had deserted her, and that she had therefore become chargeable to the parish of her birth, being the defender's parish.

The defender denied that there was ever any real marriage with White, and stated that the pauper still retained her derivative settlement in Dumbarton which she obtained through her marriage with Jenkins.

The defender pleaded—“ Preliminary—The present action being in effect a declarator of marriage, is outwith the jurisdiction of the Sheriff Court. Merits—(2) The pauper having a derivative residential settlement in pursuer's parish, the pursuer has no recourse against defender. (3) The pursuer's statements of the pauper contracting an irregular marriage with William White, and of habit and repute marriage and cohabitation being unfounded in fact, the

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defender is entitled to decree of absolvitor, with expenses.”

The Sheriff-Substitute ( Gebbie) repelled the defender's preliminary plea and allowed a proof.

The facts relating to the alleged marriage were these—Upon 24th January 1887 Mrs Jenkins and White, along with White's brother and sister, went to Berwick, and sent for a man named Ferguson, who was in the habit of celebrating “Border” marriages; that they, along with a man named Smith, drove to Flemington Toll; there Ferguson read over portions of the English Church marriage service, and Jenkins and White accepted of each other as man and wife. They afterwards went back to Coldingham, and lived at her house there, but about a month after their return a girl Kennedy was introduced into the house as a servant, and White cohabited with both women at Coldingham in the house, and afterwards in a house at Chirnside, to which they removed. In October 1887 the pauper left White, it being, as she deponed, lmpossible for her to live with him any longer. They parted on apparently friendly terms, but White kept himself hidden, and had no communication with her, nor contributed to her support. He was not found until after this action was raised, when it was discovered he was living in Fife. Both he and the girl Kennedy gave evidence at the trial. He denied that there was any marriage as alleged. The defender sought to show that the alleged marriage was a mere drunken frolic.

After the pauper returned to Dumbarton she fell into great poverty, and at length attempted to commit suicide in Dumbuck Wood, which, though close to the town of Dumbarton, is in Old Kilpatrick.

Upon 18th October the Sheriff-Substitute pronounced this interlocutor:—“Finds in fact that on or about 10th September 1889 the pauper was found by the county police in Dumbuck Wood, in the defender's parish, and about a mile outside of the boundary of Dumbarton parish, in a disabled and destitute condition, and suffering from the effects of poison she had taken; that the police conveyed her to the Dumbarton Poorhouse, situated in the latter parish, the nearest place of refuge, and the pursuer at once granted the usual admission order, and sent the usual statutory notice of chargeability to the defender; that the pauper had formerly resided in Dumbarton as the wife of Mr Jenkins, Chief-Constable of Dumbartonshire, and on his relinquishing his office, accompanied him to Coldingham in Berwickshire, where he died; that after his death, and about 24th January 1887, she entered into an irregular marriage per verba de prcesenti with William White, a travelling basket-maker, at Flemington Inn, in the county of Berwick, in Scotland; that William White was born in England, and has not, so far as shown, acquired any settlement in Scotland, and that the pauper and White continued to cohabit as husband and wife down to the end of September or beginning of October 1887, when she left him and returned to Dumbarton, where she resided until she was discovered in Dumbuck Wood—at least it is not proved she had abandoned her residence in Dumbarton prior thereto; and that the pauper was born in Old Kilpatrick, the defender's parish: Finds in law that the pauper falls to be maintained by the parish of her birth: Therefore decerns against the defender as prayed for, and finds him also liable in expenses, &c., and decerns.”

The defender appealed, and argued—It was admitted that if the pauper had no other settlement she must be supported by the parish of her birth. But it was admitted by Dumbarton that she had a derivative settlement there from her marriage with Jenkins; she had not lost it by her absence in Berwickshire for about two years. The questions therefore were—if she had married White in 1887 and so lost her derivative settlement? and (2) if he had deserted her, so that she had to resort to her birth settlement, White having admittedly acquired no settlement in Scotland? It was settled by authority that an irregular marriage could be proved to have taken place between two parties without a declaration of marriage being brought so that decree could be made available against the husband— Beattie v. Baird January 16, 1863, 1 Macph. 273. Even if the marriage between the parties had been proved, there had not been proved any desertion by the husband of his wife. They had parted quite amicably, and it was merely a case of parties agreeing to live apart; that was not enough to show desertion on the husband's part. As a general rule the husband was shown to have left the country—Guthrie Smith on Poor Law, 198. It had been decided that in a case such as this the parish which gave the relief had no claim against the parish of birth settlement— M'Crorie v. Cowan, March 7, 1862, 24 D. 723. As regards the marriage, the evidence all went to show that it was not a serious ceremony or believed to be so by any party, but was merely a drunken frolic. Even assuming the marriage, the parish of Dumbarton was still liable. This woman had been living in Dumbarton for the last two years, and when she was found in Old Kilpatrick she was at once taken to Dumbarton and relief given her. Dumbarton must go against the husband and not come upon Old Kilpatrick. He was in Scotland, quite easily found, and the Poor Law gave the authorities power to deal with such a case.

The pursuer argued—Old Kilpatrick was the birth parish of the pauper, as she had no other settlement; she must be maintained by it. Old Kilpatrick was also the parish bound to relieve Dumbarton for temporary relief afforded, as it was in Old Kilpatrick parish that the pauper was found in a helpless condition from want and poison, and a proper subject of parochial relief. She was taken to Dumbarton Poorhouse, but that was because she was in danger of her life, and that was the nearest place of safety, but all that Dumbarton parish did to this pauper was on the footing that Old Kilpatrick was bound to relieve

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them of their expenditure. Dumbarton in fact acted merely as the hand of Old Kilpatrick in relievingher. It was not necessary for the interim relieving parish todiscuss the relations of the pauper to see if she had any ablebodied person who was bound to support her; therefore if Old Kilpatrick was dissatisfied with the alleged marriage it was its duty to try the question with White and not with the parish which had only given temporary relief— Hay v. Adams, January 23, 1851, 3 Poor Law Mag. 173. In the case of Austin v. Shennan, October 30, 1874, 2 R. 68, the Court had disallowed to an interim relieving parish the cost of making inquiries as to the settlement of the pauper, and also expense incurred in prosecuting the husband for desertion. It was plain therefore that the Court thought the parish to which the pauper was ultimately found liable, was the proper party to undertake these inquiries. As regarded the marriage, that was amply proved, and the Sheriff-Substitute had so found. It was evident that the husband had deserted his wife. His conduct with this girl Kennedy rendered it impossible that she could continue to live in the same house with him, and the mere circumstance of not quarelling at the actual moment of parting did not take away from the fact that he had really driven her out of the house. He had afterwards hidden himself away and contributed nothing to her maintenance, and he denied that he was her husband. The facts were sufficient to constitute desertion in the meaning of the Act— Johnston v. Wallace, June 13, 1873, 11 Macph. 699.

At advising—