Scottish Court of Session Decisions

This action was raised by the inspector of poor for the parish of Campsie against the inspector of poor of the parish of Govan, on 21st June 1871. It concluded for aliment given to Mrs Carson from August 1868 to August 1871, and for aliment given to her children from August 1868 to December 1869. It also concluded that the parish of Govan be ordained to relieve the parish of Campsie of the maintenance of Mrs Carson for the future.

Elizabath Murphy or Carson, and Jane and Elizabeth Carson, the paupers, were the wife and children of Andrew Carson. They were discovered in a state of destitution in Campsie parish on 29th August 1868, at which date they were removed to the poor house, and on 25th September of the same year Mrs Carson, having become insane, was removed to Gartnavel Asylum, while the children remained in the poorhouse for some time, when they were removed by their father. It appeared from the proof which was led in the case that Andrew Carson originally left his wife because, as he alleged, her conduct was unbearable—that she often threatened his life, and otherwise ill treated him. Further details are contained in the interlocutor of the Sheriff (infra).

On 22d August 1872, the acting Sheriff-Substitute ( Lawrie) pronounced an interlocutor assoilzing the defenders from the conclusions of the action. In a note to his interlocutor the Sheriff-Substitute stated the ground of his decision as follows:—

“… The cases of Hay v. Skene, 13th June 1850, 12 D. 1019; and Carmichael v. Adamson, 28th February 1863, 1 Macph. 452, settle that where a husband has no settlement in Scotland his desertion of his wife has the effect of reviving her maiden or birth settlement.

In all the reported cases in which the husband's desertion was founded on, he had left Scotland. It has not yet been decided whether the wife's birth parish is liable when the husband remains in Scotland but conceals himself and fails to aliment his family. The Sheriff-Substitute thinks that the desertion contemplated by the Judges who decided Hay v. Skene, and Carmichael v. Adamson, must be something more than the desertion which is punishable under the 80th section of the Poor Law Act. He has given repeated consideration to the question, and he has come to be of opinion that the only desertion which revives the wife's birth settlement is the husband's wilful absence from Scotland, coupled with failure to support his wife and family left here. In other words, that the husband must have withdrawn himself from the jurisdiction of the Courts of Law in Scotland, which, had he remained here, could either have compelled him to support his wife, or, if he himself were a pauper, could have removed them all to his native country.

The Sheriff-Substitute is further of opinion that the onus of proving that the husband is abroad lies on the parish where the wife was found destitute, and that it must continue to support her until, by proof of that fact, it shifts the liability to her birth parish. If these views be correct, it is unnecessary to say more than that, in the circumstances proved, and on the authority of M'Crorie v. Cowan, 24 D. 723, Campsie has no claim against Govan… …”

The pursuer appealed, and on 7th December 1872 the Sheriff ( Bell), reversing the judgment of the Sheriff-Substitute, pronounced an interlocutor containing the following findings:—“… Finds that the proof instructs that Andrew Carson, the husband of the pauper Elizabeth Murphy or Carson, and the father of Jane and Elizabeth Carson, is a native of Ireland; that if he ever acquired a residential settlement in Scotland, which is uncertain, he lost it a good many years ago; that in point of fact he had no settlement in this country during any portion of the period embraced in the account of disbursements for his said wife and children annexed to the summons; and that his wife was born in the parish of Govan, which was the parish of her maiden settlement: Finds, farther, that it is proved that Carson deserted his wife and family about the end of the year 1867, and although he does not appear to have left the country, he kept his place or places of residence concealed, and contributed nothing to their support from the said date till the end of the year 1869, when he removed his children from the Govan Poorhouse, and has apparently taken charge of them since: Finds that, in consequence of said desertion, Carson's wife and children became paupers and entitled to parochial relief, and his wife was for sometime maintained in the Govan Poorhouse at the expense of the parish of Campsie, being the parish where she was residing when deserted, and where she became chargeable, and was then removed, in consequence of supervening insanity, to a lunatic asylum, where her board has been disbursed by the said parish, and the said children were boarded at the expense of the said parish in Govan Poorhouse till the end of the year 1869: Finds, in point of law, that it is settled by the cases of Hay, June 13, 1850, and Carmichael, Feb. 28. 1863, that a wife and children left destitute by the desertion of the husband and father, who is a foreigner, and has no settlement in Scotland, fall to be supported by the parish of

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the mother's birth, that being her maiden settlement: Therefore, and under reference to the annexed note, recalls the interlocutor appealed against; finds that the paupers having been deserted by Andrew Carson, who is an Irishman without a settlement in this country, the parish of Campsie, as the parish in which they happened to be residing when they became destitute, is entitled to be relieved of its disbursements on their account by the parish of Govan, as the birth parish of Elizabeth Murphy or Carson

“Note.—The Sheriff-Substitute, while recognising the authority of the cases of Hay and Carmichael, seems to think that the decision in these cases was influenced by the fact that the husbands had left Scotland when they deserted their families, and stated that it has ‘not yet been decided that a wife's birth parish is liable when the husband remains in Scotland, but conceals himself, and fails to aliment his family.’ The Sheriff cannot find that there is any room for distinguishing between the one desertion and the other. Desertion, as defined by the 80th section of the Poor Law Act, is simply the ‘neglect’ by a husband or father ‘to maintain his wife or children, being able so to do.’ In Hay's case it was the fact of the husband's desertion alone (he being an Englishman without a Scotch settlement) that the Court went upon, not that of his being furth of Scotland, for, on the contrary, Lord Moncreiff, who was in the minority, pointed out that ‘for anything that appears in this case, he (the husband) may be still living in some part of Scotland.’ In Carmichael it was not known where the husband and father was, except that he had gone to sea, and had not been heard of since. The broad proposition which was there affirmed was, ‘that where a husband has no settlement, his desertion of his family has the effect of reviving his wife's maiden or birth settlement,’ both for herself and the pupil children of the marriage. This proposition was in no respects based on the assumption that the deserting husband had left Scotland. All the Judges referred to the bare fact of ‘desertion,’ and gave no indication that they meant more by that word than a failure to maintain his wife and children by an able-bodied man. Their Lordships also took care to explain that the decision in the prior case of M'Crorie, March 7, 1862, did not militate against either that of Hay or of Carmichael, seeing that M'Crorie was the case of an undeserted, and the other of a deserted, wife. As regards the fact of the desertion in the present case, there can be no doubt. Carson's place of residence was, it seems, known for at least a portion of the time to certain parties, but they refused to disclose it, and it was known neither to the pursuer nor to his wife and children, who were pauperised by his failure to consort with them or do anything towards their maintenance. The defender himself admitted the desertion, and on 5th November 1869 issued a hand-bill offering a reward for Carson's apprehension. He took steps at the end of 1869 to relieve the parish of his children by removing them, but it does not appear where he has been since.”

The defender appealed to the First Division of the Court of Session.

The argument submitted by the pursuer and defender are substantially embodied in the notes, as above quoted, of the Sheriff and Sheriff-Substitutes respectively.

Authorities relied on by the pursuer— Hay v. Skene, 12 D. 1019; Carmichael v. Adamson, 1 Macph. 452; Wallace v. Turnbull, 10 Macph., p. 675.

Authority relied on by the defender— M'Crorie, 24 D. 723.

At advising—