Scottish Court of Session Decisions

It must be kept in view that the residential settlement which pupil children living with their father acquire derivatively from him becomes their settlement in their own right, and any question occurring after the father's death as regards the retention or the loss of such residential settlement, is to be judged of on that footing. Throughout the decisions, and especially from the case of Lasswade downwards, this has been recognised in the opinions of all the Judges by whom those decisions were pronounced. And therefore, when the question arises under the 76th section of the statute, either as to the acquisition of a residential settlement, or as to its non-retention or loss, the same principles are to be regarded in its solution, whether it is the personal residence of the pauper himself on which the settlement depends, or the settlement of the pauper's father, from whom derivately it has been acquired by the pauper. And I am not aware of any authoritative opinion until very recently pronounced to the contrary.

The case of Adamson v. Barbour, as decided in the House of Lords in 1854, on social considerations very fully explained by the Lord Chancellor and Lord Brougham, negatived the views which had been taken in this Court, that where the father of a family is dead, or has deserted them leaving them in poverty, that a distinction prevailed between residence and birth settlements. It was found that the whole family of pupil children and their mother, wherever born, fell to be supported by the father's parish, whether his settlement was derived from residence or from birth. I do not find, however, that, excepting in that class of cases, all distinction between derivative settlement was by that judgment put an end to. On the contrary, there have been repeated decisions since that judgment recognising the principle that a derivative residential settlement continues with the child acquiring it until it has been lost under the 76th section of the statute through non-residence, or until a new settlement has been acquired through the child's own residence in another parish. The case of Hume v. Halliday, in 1849, affords an apt illustration. There the derivative residential settlement was held to have been lost through non-residence for the period required by the statute, and on that ground the parish of birth was found liable. And it may be noticed that in the Lord Ordinary's interlocutor, to which the Court adhered, the residential settlement acquired by the pauper through the father is expressly stated to be “in his own right and as his own proper settlement;” and Lord Jeffrey in reference to the same matter states “that it is actual residence,” and not properly derivative by presumption of law. The cases also of Allan v. Higgins, 1864, and Beattie v. Adamson, 1866, proceed upon a recognition of the same principle; and I may farther refer to the case of Fraser v. Robertson, June 5, 1867, which, having regard to the circumstances of the case, could not have been decided as it was except upon principles altogether hostile to the views contended for on the part of St Cuthbert's. The note of the Lord Ordinary ( Kinloch) and the opinion of the Judges of the Second Division are quite in accordance with the other decisions to which I have referred.

The cases on which the argument for St Cuthbert's was mainly founded were (1) that of Craig, in July 1863, (2) the case of M'Lennan, June 1872, and (3) the case of Ferrier v. Kennedy, Feb. 1873. Now the first of these cases was a competition between the birth parish of the father and the pauper's birth parish, and though in the other two cases opinions were expressed which appear to go the length of holding that a minor pubes and forisfamiliated cannot found on any derivative settlement from his father, whether that settlement be by residence or birth,—I cannot hold that question to have been decided by the case of Craig, while, as your Lordship has fully explained, the decisions in those other cases are capable of being arrived at on other grounds.

On the whole, in the circumstances of this case, I think judgment must be given against St Cuthbert's.

Lord Benholme—My opinion coincides. I think that in this case the derivative settlement acquired through the father was lost neither by puberty nor by the second marriage of the pauper's mother. I think that it must accordingly govern your Lordships' decision.

Lord Neaves—I am of the same opinion. The pauper in this instance started with a good residential settlement derived from his father. It would be an extravagant proposition to maintain that when a pauper's mother marries again the pauper follows the settlement of his step-father. The only effect of a mother's marriage might be to prevent a person becoming a pauper at all, but such a marriage could not alter the pauper's settlement.

The Lord Justice-Clerk concurred.