Scottish Court of Session Decisions

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Cite as: [1867] SLR 5_240, [1867] ScotLR 5_240

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SCOTTISH_SLR_Court_of_Session

Page: 240↓

Court of Session Inner House Second Division.

Saturday, February 8. 1867.

5 SLR 240

Allan

v.

Higgins and Burton.

Subject_1Poor
Subject_2Residential settlement
Subject_3Birth settlement
Subject_4Continuity of Residence — Common Begging — Onus — Expenses.
Facts:

Circumstances in which held ( Lord Benholme diss.) (1) that an absence of six months destroyed continuity of residence, and thereby prevented the acquiring of a residential settlement; (2) that while the onus of proving the character of residence lay on the parish of birth, that had not been discharged by showing that there had been that absence of common begging without which a settlement by residence could not be acquired. Pursuer held not entitled to expenses in the Inner-House, his appearance there being unnecessary.

Headnote:

This was an action of relief, brought by the Inspector of the parish of Cambusnethan, against the Inspectors of the parishes of Shotts and Dalmeny, concluding for repayment to the pursuer of the sum of £135, 8s. 7d., advanced for the support of John Linn or Lind, a lunatic pauper, and for relief of all future advances for the same purpose. The parish of Dalmeny was the parish of birth, and the parish of Shotts was alleged to be the one in which the pauper had acquired a residential settlement. The question came to lie between these two
Page: 241↓
parishes, there being no dispute that theu purser was entitled to relief from the one or from the other.

It appeared that, from a period anterior to the month of March 1852, down to July 1852, the pauper resided in the parish of Shotts, sleeping beside the furnaces of the Shotts Ironworks, some of which are in Shotts and some in Cambusnethan, and living partly by occasional employment which he obtained, and partly by the unsolicited charity of his fellow-workmen. In July 1852, he obtained regular employment in the Shotts Ironworks, and continued there till March 1857, when he was dismissed, and went to England, subsisting, it did not appear how, for a period of six months. At the end of these six months, he again returned to Shotts, and resumed his employment in the works, and continued in that employment till about March 1359, when he removed to the parish of Cumbus-nethan. It was in these circumstances maintained by Dalmeny (the parish of birth) that there had been a residential settlement acquired in the parish of Shotts, and that that settlement was not affected by the gap of six months during which the pauper was absent—(1) because that absence was a mere incident, which did not affect his residence; and (2) because, even if the absence did break the continuity of the residence, the residence in Shotts must be held to have begun at least in March 1852, whereby the five years necessary to a residential settlement were completed in March 1857, before the six months' absence began.

Judgment:

The Lord Ordinary ( Jerviswoode) decerned against the parish of Shotts, holding that the pauper had acquired a residential settlement in that parish, beginning in July 1852, when he obtained regular work there, and not interrupted by the six months' absence in England.

The Inspector of Shotts reclaimed.

Fraser and Deas for him.

Watson and Trayner for Dalmeny.

R.V. Campbell for pursuer.

The Court ( Lord Benholme diss.) recalled the Lord Ordinary's interlocutor, and found that there had been no residential settlement acquired, and that the parish of birth was liable.

The majority of the Court, while conceding that a residential settlement did not imply an industrial settlement, but only the absence of common begging, were yet of opinion, upon the evidence—(1) that prior to July 1852, when the pursuer obtained regular employment, there was no satisfactory evidence of such residence in the parish of Shotts as would constitute a residential settlement; (2) that the pauper's subsequent residence in Shotts was interrupted in March 1857 by his six months' absence in England, which was not proved to be incidental to his employment or otherwise consistent with his retaining his connection with the parish of Shotts. Their Lordships held that the onus of proving residence, and especially of proving that a hiatus in the period of residence was incidental and not interruptive, lay always upon the parish of birth, and that in this case the parish of birth had not discharged itself of this onus.

Lord Benholme took a different view of the evidence, and held that, looking to the circumstances as a whole, the fair inference was (1) that the pauper's absence in England did not interrupt his residence in Shotts, but (2) that even if it did there was five years' residence before that absence began, in respect that the pauper resided in Shotts, and was not a common beggar from March 1852, and not merely from July 1852 as assumed by their Lordships.

The parish of Shotts was therefore assoilzied, and decree pronounced against the parish of Dalmeny, with expenses. The pursuer having moved for the expense of appearing and taking decree against the unsuccessful parish, their Lordships refused to allow any expenses to the pursuer, as his appearance in the Inner-House was unnecessary.

Solicitors: Agents for Shotts— Waddell & Mackintosh, S.S.C.

Agents for Dalmeny— Duncan, Dewar and Black, W.S.

Agent for Cambusnethan— Alexander Wylie, W.S.

1867