Scottish Court of Session Decisions

Lord Cowan—I am of opinion that the interlocutor of the Lord Ordinary should be adhered to. Residence, in the sense of the Poor Law Act, is a matter of fact, and not of intention. Unlike the principle of domicile, it is not concerned with the animus revertendi. There is therefore no room for the argument maintained by the parish of birth on the party's intention to return to Edinburgh, and his actually having done so. As to residence, it must be continuous. Absence of varying duration may no doubt take place, and the law allows considerable latitude in this respect, if they are not of such a nature as to interrupt continuity. Such an absence from the place of residence is one made when a visit is being paid. But it is out of the question to say that a party had continuous residence in a place who went wandering about the country, living in lodgings, and giving them up as he travelled along.

Lord Neaves—I agree in thinking that we ought to adhere to the interlocutor of the Lord Ordinary. This is a class of cases involving circumstances of infinite diversity, and the two words used in the statute are words of very difficult definition. It is difficult to tell what a residence is. It is difficult also, by a definition, to say what continuousness is. These things we must just determine according to the ordinary current of human affairs. As to residence, a person must be personally present, not only animo but corpore. But he may be continuously resident without always being personally present, and it is difficult to say what amount of absence will destroy continuity. It is easy to suppose a man absent on his business during the greater part of the week from a particular place, except on Sundays, and still have his residence there. Such is the case of a commercial traveller, or an inspector of schools, or a Queen's messenger, if there was such an office in Scotland, or a courier, or such other kind of person. In arriving at the decision proposed by your Lordship, we are not at all going against former decisions. If there be a well begun residence—for the latitude allowed is all in the middle, and not at the two extremes—and that ends with a good residence, you then may have considerable periods of absence. But these absences are plainly subsidiary—travelling about, for example, on visits made in the vacation of a man's business. Such absences do not interfere with the character of residence. But then these cases must come to this, that the connection of the party with the place must be maintained in some way or other, as, for instance, by the party having a house in the place which he was always looking to when away. But there is no such connection here. There was no house nor fixed place preferred by the person as the place of his residence. He could not say he was residing in any one parish when he gave up his lodgings in the way he did. He could not have assigned a residence for himself. He went about the country with his wife and children, who were born in different places, carrying with him his whole stock-in-trade, and, with the ancient sages, might have said, Omnia mea mecum porto.

Lord Justice-Clerk—I entirely concur in the proposed judgment. I don't think the case is free from difficulty, because, as Lord Neaves has suggested, the words “continuous residence,” used in the statute, are incapable of definition. But in this case, if it is proved that the pauper did not maintain his residential settlement, acquired through his father, by one year's residence in the parish, there is an end of the case. There is always a fallacy present in this class of cases, from the language use of the acquisition of a settlement by the pauper, as if the pauper acquired a right. The fact is, that the acquisition by the pauper is merely the incidence of a burden upon a parish. I concur with Lord Cowan that the intention of the pauper is not an element in the question, and that the analogy of domicile is misleading. Residence is a fact, and, as a fact necessary to raise the liability of the parish, does not depend on the mind of the pauper, and therefore to search much for legal principle in such cases is to proceed upon a mistaken view of them. The rule is arbitrary, and that is well illustrated by the present case; for we are to find the parish of birth liable, and that was a mere accident occurring among the nomadic habits of the class to which this man belonged. There is no principle in that-it is a mere fact fixed by a rule. And the residence in Edinburgh is of the same character, marked by' a very thin line of demarcation, residence in one place being, in the parish of Edinburgh, divided by a staircase perhaps from the city parish; so that really everything depends on fact. I assume here that Edinburgh was the main haunt of this man; but his residence was not continuous, because he was not continually there. He resided in Edinburgh when he was in Edinburgh, and he resided in another place when he was in that place. But it is said that constructively there was continuous residence in Edinburgh, and that because he meant to come back to Edinburgh, and did actually come back. But that is to introduce the element of intention. I do not deny that such cases as Miles v. Greig, and Moncrieff v. Ross, to a certain extent recognise constructive residence, but I think the underlying

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