Scottish Court of Session Decisions

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.