Scottish Court of Session Decisions

Lord President—The pauper in this case became chargeable in February 1872, when he was thirty-one years of age. He had acquired no residential settlement, and therefore one would think that there was no doubt that the parish liable was the parish of his birth. But it is said that he was in possession of a derivative settlement, which he had not lost by his twelve years' residence abroad, as that residence had been in the capacity of a soldier on service. Such a doctrine is very suspicious, the result showing unsoundness.

That, however, is not sufficient to enable us to give judgment in this case, but we must examine the facts.

When his father died the pauper was between eighteen and nineteen years old, and his father had at the time of his death aresidential settlement in Auchinleck. It further appears that a few weeks after his father's death the pauper enlisted and went on foreign service, where he remained for nearly twelve years. It is not stated that after his father's death the pauper resided with his mother; if he had done so that might have made a difference.

I am of opinion that upon the death of his father the pauper was necessarily emancipated, and that at the date of his emancipation his settlement was in the parish of his own birth. I conceive that the principle laid down first in Craig v. Greig and Macdonald, and in M'Lennan v. Waite, is conclusive. I said in the latter case that “a person who has no residential settlement in his own right is chargeable on the parish of his own birth if he is above the age of puberty; and as soon as he does attain the age of puberty, his father being dead, his settlement is in his birth parish in preference to any derivative settlement which he previously had.” I am quite prepared to repeat that opinion, and when I delivered it I understood the Court to concur. That rule is directly applicable in the present case, and the parish of the pauper's birth, that is the parish of New Monkland, is bound to support this pauper.

Lord Deas—This is a case in which the father dies when the son is nineteen years of age. It is not stated whether or not the mother survived the father, but I go upon the assumption that she did not, because if she did, a fact of such importance would have been stated in this case. If the mother had survived the father, that fact might in some circumstances have made all the difference, because the mother's survivance might have raised a totally different question, and what we decide in this case must not be held to exclude question in a case where a surviving mother, with a family below majority but above pupilarity, and consequently forisfamiliated, brings a claim against the parish of her husband's residential settlement, both for herself and for her family.

But that is not the case here, and the effect of the father's death was not to pauperise his family, or at least his son, with whom we are now dealing; but one effect of the father's death was undoubtedly to emancipate the son. It is not stated whether the son maintained himself during the three weeks between his father's death and his own enlistment, but it is not said that he did not do so; so, if we take the case to be that the son fell into poverty at the end of the three weeks, and not twelve years after, still he would fall into poverty after emancipation, and would have to go upon his own parish. In the case of M'Lennan v. Waite there was no doubt thrown on that doctrine by Lord Kinloch, whose opinion I adopted. What Lord Kinloch wanted to guard against was the stringent application of the rule to the case of a family being pauperised when part of the mother's family. But in a case of this sort, when there is no pauperism at the date of emancipation, the person afterwards becoming pauper must go upon his own parish, and in this case it is the parish of his birth.

It is not necessary to deal with the question whether a residential settlement is lost by military service abroad.

Lord Ardmillan—There are two simple facts in this case which leave no room for doubt.

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