Scottish Court of Session Decisions

James Wallace, Inspector of Poor of St Nicholas parish, Aberdeen, sued William Turnbull, Inspector of Stewarton, Ayrshire, for certain sums paid to the wife of David Caird. The following interlocutor, pronounced by the Sheriff of Ayrshire ( Campbell), recalling the interlocutor of the Sheriff-Substitute, fully brings out the facts of the case:—“Finds that the present action is at the instance of the Inspector of Poor of the parish of St Nicholas or City Parish of Aberdeen, pursuer, against the Inspector of the parish of Stewarton, defender: Finds the summons concludes for payment of £10, 8s. 3d. outlay and expenses incurred by the pursuer in maintaining a pauper named Mary Davidson or Kerr from the 26th of January 1869 to the date of the summons, and for future aliment: Finds the said Mary Davidson or Kerr is the lawful wife of David Kerr, who was born in the pursuer's parish in the year 1810: Finds the said David Kerr, who was married in 1829, deserted his wife at Aberdeen in the year 1855, and has continued his desertion up to the present time: Finds that at the date of his desertion in 1855 the said David Kerr had a residential settlement in the parish of Old Machar, Aberdeen: Finds the said Mary Davidson or Kerr, shortly after her husband's desertion, applied to Old Machar for parochial relief: Finds the said parish of Old Machar granted her temporary relief for a few months prior to 14th January 1856, at which date she ceased to be chargeable, and apparently supported herself for nearly, but not quite, five years: Finds the said Mary Davidson or Kerr again fell into poverty, and became chargeable to the said parish of Old Machar on the 27th of October 1860, and received relief up to the 4th of February 1861, when she removed to the pursuer's parish: Finds that, in consequence of the said David Kerr's continuous absence from Old Machar since 1855, a statutory notice of chargeability was sent by that parish to the pursuer's parish upon the 27th of October 1860, on the ground that the said David Kerr had lost his residential settlement in Old Machar, and that the pursuer's parish was bound, as the admitted birth parish of the said David Kerr, to relieve Old Machar of the pauper's future maintenance: Finds the pursuer, in the belief that he was bound to relieve Old Machar from the date of the statutory notice in October 1860 until the pauper's removal to the pursuer's parish in February 1861, repaid Old Machar its advances during that period, amounting to £1, 8s.: Finds that, from the 4th of February 1861 up to the date of the summons, the said Mary Davidson or Kerr has received relief from the pursuer's parish, and is now in receipt thereof: Finds that the sums concluded for as aforesaid have been disbursed by the pursuer in alimenting the said Mary Davidson or Kerr and in investigating her settlement, and that the pursuer continues to aliment her: Finds that, from the year 1863 to the present time, the said David Kerr has resided in the defender's parish, viz., the parish of Stewarton, and that it is not alleged that he has had recourse to common begging by himself or his family, or that he has ever received or applied for parochial relief: Finds that, on or about the 26th day of January 1869, the pursuer sent a statutory notice of the chargeability of the said Mary Davidson or Kerr to the defender, and intimated his claim of relief in terms of statute: And in these circumstances, finds, in point of law, that the said David Kerr acquired and still possesses a settlement in the defender's parish; that the settlement of the husband is also the settlement

Page: 418↓

of his wife, and that there is nothing in the present case to warrant the conclusion that the said Mary Davidson or Kerr had, during the period for which relief is sought, or has at present, any other legal settlement than that of her husband: Therefore finds the defender liable to relieve the pursuer in terms of the conclusions of the sum mons, and decerns accordingly: Further, finds the pursuer entitled to expenses,” &c.

The Sheriff added this Note—“On the facts above stated the Sheriff is of opinion that the defender's parish is liable in the relief claimed.

In the case of Gray v. Fowlie, March 5, 1847, 9 D. 811, it was held by a majority of the whole Court that, although a husband desert his wife and go abroad, she cannot, until the dissolution of the marriage, acquire a settlement in any parish different from that where his settlement was when he left.

More recently, it was held by a large majority of the whole Court that a married woman cannot have any settlement of her own apart from her husband, or any settlement that is not his settlement—that her fate, in short, is linked to his in so far as the question of settlement is concerned— M'Crorie v. Cowan, March 7, 1862, 24 D. 723.

There are certainly no cases on this subject of equal authority with these two. There are none, in short, in which the whole Court has been consulted.

The Sheriff has therefore no hesitation in accepting the doctrine as there laid down, on the ground that it is authoritative. Besides, he is himself of opinion that it is sound.

Now in the present case it is quite ascertained that the defender's parish is the settlement of the husband, and has been so since 1869, by virtue of five years' residence therein ‘without having recourse to common begging by himself or his family, and without having received or applied for parochial relief.’

Being an able-bodied man during the whole period of his residence, he had no claim to be relieved of the expense of maintaining his wife and family; and the fact that she claimed and obtained relief from the parish in which she resided, in his absence, and without his consent, cannot have prevented him from acquiring a settlement in Stewarton.

But the Sheriff-Substitute seems to think that his desertion of his wife during the time he lived in Stewarton, being criminal, gave such an illegal character to his residence there as to prevent him acquiring a settlement for himself and her.

But his residence there was not in the least illegal. It was his failure to take his wife there with him that was illegal; but that fact could not prevent his acquisition of a settlement by residence, if his residence was such as the statute requires in point of continuity and endurance, and was unattended with begging or receipt of, or application for, relief.

On what ground should the deserted wife have a different settlement from the ascertained settlement of her husband? If he voluntarily took her home to-morrow, it could not be doubted that his settlement would then be hers. If she went to his house and insisted on living with him, the same result would happen. If they mutually agreed to live separately and in different parishes, still his settlement would undoubtedly be hers. Nay, if she deserted him, it is a settled point that his settlement would continue to be hers. In short, it seems admitted on all hands that if husband and wife should live in separate parishes for any length of time or for any cause, the settlement of the husband would be the settlement of his wife unless the husband was possessed with the evil intention of deserting her. But why should this evil intention in the mind of the husband affect the question? There is nothing in the statute introducing such an element of consideration, and the Sheriff can see no legal principle for holding that such a consideration should have any weight. It would only introduce an element of confusion into poor law administration.”

The defender appealed.

Solicitor-General ( Clark) and Burnet for him.

Watson and Keir for the respondent.

At advising—