Scottish Court of Session Decisions

In this case the parties agreed upon the following statement of facts:—Jane Young or Stewart, the pauper lunatic whose settlement is in dispute, is forty years of age, and was born in the parish of Leslie. She is the wife of Andrew Stewart, seaman, aged thirty-seven years, who was also born in Leslie. Andrew Stewart is the son of the late Robert Stewart, flax-dresser, who resided for many years in Leslie. At Martinmas 1851 the said Robert Stewart removed to Kirkcaldy, and subsequently, in May 1859, to Abbotshall. He emigrated to America in October 1865, and died there about two years after, leaving his wife and family in Abbotshall, where they still reside. Andrew Stewart removed with his father to Kirkcaldy in 1851, and for some time worked as an apprentice blacksmith; but in consequence of the dulness of trade at the time, he failed to complete his apprenticeship, and went away to sea. Since that time he has followed the occupation of a seaman, for the most part sailing on board American vessels, and generally returning at the end of his voyages, which usually extended from one and a-half to two years, to his father's house in Kirkcaldy, and after-wards

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in Abbotshall, but seldom staying more than a few days at a time on these occasions. In February 1864 he married the aforesaid Jane Young, and they took up house in Leslie, where they continued to reside until February 1866. At that time the said Jane Young or Stewart, becoming incapable from supervening insanity to manage her household affairs, was removed from her house in Leslie, and boarded with Mrs Stewart (residing in the parish of Abbotshall), her sister and husband's stepmother. She refused to remove with her husband, and two of her sisters had to go to Leslie to remove her. Her husband stayed with her one night after her removal to Abbotshall, having to leave the following day to join his ship at Leith. The said Andrew Stewart gave no particular instructions as to the disposal of his furniture, which was removed from his house in Leslie, under the directions of his wife's sisters, before the term of Whitsunday 1866, and placed in the house of a friend of theirs at Morningside, in the parish of Kinghorn, where it still remains. He never rented a house or room in the parish of Abbotshall, and did not pay in any way for accommodation for himself when absent from the parish. He paid 4s. per week for his wife's bed and board, and he paid additional for his own bed and board when he stayed with his wife in the house of the foresaid Mrs Stewart in Abbotshall. Since February 1866, when he removed his wife to Abbotshall, Andrew Stewart did not land with his ship at any port in Scotland except once at Troon, in December 1870. But during the interval from 1866 to 1870 he visited his wife twice. On the first occasion he stayed only a few days, his duty as mate preventing him from being long absent while his ship was lying in port. On the second occasion he remained at home for twelve months, being at the time in bad health. On leaving, which he did in May 1869, he went to Glasgow, and stayed for a few weeks there with a cousin, attempting to procure an engagement on board another vessel. His last visit occurred in December 1870, on the occasion before referred to, when his vessel touched at Troon; but this visit extended only to a few days. Subsequent to this he did not land in Scotland nor return home. From the date of his wife's removal to Abbotshall to that of his last visit (February 1866 to December 1870) is two months short of five years. The said Jane Young or Stewart was removed to the Fife and Kinross District Lunatic Asylum, at the charge of the parish of Abbotshall, on 11th August 1871. Her husband was then lying with his ship at Rotterdam, and there were no funds available to meet the expense of her removal to the asylum. Since that time, however, he has twice made remittances for behoof of his wife. First, he sent £10 to his stepmother, and afterwards he remitted £14 to the inspector of Abbotshall parish, through his cousin in Glasgow. Of this sum of £24 upwards of £23 was received by the Parochial Board of Abbotshall. At the time of the removal of the aforesaid Jane Young to the asylum, statutory notice of chargeability was sent to Leslie, and a claim was made on that parish as her husband's birthplace; but this claim is refused, on the ground that her husband began to acquire a settlement in Abbotshall in February 1866, and that that parish continued to be his home until the time of his wife's removal to the asylum in August 1871, a period of upwards of five years; that he has still no other recognised place of residence, and that he continued to pay for his wife's maintenance during the whole period of her residence in that parish. The question for the Sheriff to decide is, whether, in these circumstances, a residential settlement has been acquired in Abbotshall?

On 24th May 1873, the Sheriff-Substitute ( Beatson Bell) pronounced an interlocutor finding in point of law that the husband of the lunatic had acquired a residential settlement in Abbotshall at the date when his wife became chargeable as a pauper on that parish. The Sheriff-Substitute considered this case to be ruled by the cases of Greig v. Miller, 5 Macph. 1132, and Moncrieff v. Ross, 7 Macph. 331.

The pursuer appealed, and on 10th July 1873 the Sheriff-Depute ( Crichton), reversing the judgment of the Sheriff-Substitute, pronounced the following interlocutor:—“The Sheriff having heard parties' procurators on the appeal for the pursuer, and considered the record and joint statement of facts for the parties, recals the interlocutor of the Sheriff-Substitute of 24th May 1873; finds that Andrew Stewart, the husband of Jane Young or Stewart, has not acquired a settlement in the parish of Abbotshall by residence therein in terms of the statute: therefore decerns against the defender in terms of the conclusions of the libel; and finds the pursuer entitled to expenses, of which allows an account to be lodged, and remits the same when lodged to the Auditor of Court to tax and report.

“ Note.—The present action is brought to recover the amount of advances made by the pursuer, as inspector of the parish of Abbotshall, to Jane Young or Stewart, a lunatic at present detained in the Kinross District Asylum, the wife of Andrew Stewart, a sailor, whose present residence, if he has any, is not stated. It is admitted by the parties that Andrew Stewart's birth settlement is in the parish of Leslie, and that must be taken to be his present settlement, if he has not acquired another by residence. The settlement of Andrew Stewart, wherever that may be, and however acquired, is the settlement of his wife. She can have no other settlement than his stante matrimonio; for the peculiarity which has given rise to a different view in some cases, namely, the desertion of the husband, does not arise here. The question, therefore, for decision is, whether Andrew Stewart's settlement is his birth-settlement in Leslie, or a residential settlement acquired by him in Abbotshall?

It appears to the Sheriff that a defence to the present claim might have been founded upon the fact that Andrew Stewart, the husband, is the proper debtor in the advances which have been made on behalf of his wife, and which are now sued for; Cochrane v. Kyd, 16th June 1871, 9 Macph. 836. It is not alleged that he is a pauper, or that he is either unable or unwilling to pay for his wife's support. It may be difficult to recover from him, seeing that he is constantly moving about from port to port, but that difficulty does not shift the burden from him to another. The Sheriff, however, considers himself precluded from giving effect to this ground of defence—(1) because it was not pleaded by the defender, and (2) because in the joint minute, No. 5 of process, the parties agree in stating that ‘the question for the Sheriff to decide is, whether in these circumstances a residential settlement has been acquired?’

Upon this question the Sheriff has come to be

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of opinion that no residential settlement was acquired by Andrew Stewart in the parish of Abbotshall.

“It appears from the joint statement of the parties that when Stewart left his house in Leslie in February 1866 he did not take any house as a residence for himself in the parish of Abbotshall. His furniture was not removed to that parish, but was taken to the parish of Kinghorn, where it still remains. His wife went to Abbotshall to board with a relative, and Stewart remained with her one night, leaving next day to join his ship at Leith. From that time until his wife's removal to the Asylum in August 1871, he only visited her thrice. On the first occasion he remained a few days; on the second he remained in bad health for twelve months prior to May 1869; and on the last occasion, in December 1870, he remained again for a few days. The Sheriff cannot regard these visits as ‘residence,’ in the sense of the statute; and in no sense can they be said to be residence in the parish of Abbotshall for five years continuously, which is the statutory requirement towards acquiring a settlement by residence.

The Sheriff-Substitute remarks upon the phraseology of the joint-minute, which sets forth that Andrew Stewart remained ‘at home’ for the twelve months he was in bad health. The Sheriff thinks that nothing can be founded upon that. The words used merely import that Stewart remained on shore, or that he was not at sea during the period mentioned following his ordinary avocation. The Sheriff does not think that the cases referred to by the Sheriff-Substitute necessarily decide the present question. It is noticeable, that in these cases the sailor, while absent at sea, had a house of his own in which his wife constantly resided during his absence, and to which at the end of his voyages he regularly returned. This fact, which influenced the Court very much in arriving at the ultimate decision pronounced in these cases, is wanting in the present case. The absence in the present case of Stewart is much greater than the absence of the sailors in the cases referred to; and while the extent of absence is not of itself conclusive of the question, whether a settlement has been acquired by residence or not, it has always been considered of material importance in arriving at a decision of that question. But the most important distinction between those cases and the present is this, that in each of these cases the residence of the sailor himself was clearly fixed as having commenced at a certain date and ended at a certain date, the period between which dates being at least five years. In the present case this element is entirely wanting. It can scarcely be said that the one night which Stewart spent with his wife, in February 1866, was the commencement of a five years' residence. But even if this should be held, it is quite certain that he was not resident with his wife, nor in the parish of Abbotshall, when the five years terminated in February 1871. In the view of the Sheriff, the only residence of Stewart in the parish of Abbotshall was for the year ending May 1869. This of itself could not give him a residential settlement there, and as it is not averred that he had acquired a residential settlement in any other parish, the burden of the present claim must fall on the parish of Leslie, in which Stewart had his birth settlement.”

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

At advising—