Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Aberdeenshire and Kincardineshire in an action at the instance of Greig, inspector of poor of the parish of St Fergus, against Cruickshank, inspector of poor of the parish of Lonmay, for the sum of £3, 4s. sterling, the amount of aliment advanced by St Fergus to a pauper named Gordon Webster, whose birth settlement was in Lonmay, between 12th April 1875, when notice of chargeability was sent to Lonmay, and 18th September 1875. The summons contained the usual conclusion with respect to future advances. The pauper was 56 years old. He was disabled by disease of the limbs. His second wife, and two children aged respectively 10 years and 16 months, were dependent on him. It was not disputed that from 1842 to 1866 Webster had resided in St Fergus, where he supported a family by his first wife, who died in 1860. His sister then took charge of house and family—the youngest child being then 5 years old—until 1873, when Webster married again. His second wife then took charge down to the date of chargeability, when the household consisted of an illegitimate child and one child of the second marriage. It was not disputed that in 1866 Webster had a residential settlement in St Fergus, but the pursuer averred that he had lost this, because from Whitsunday 1866 to 12th April 1875 he had not resided in St Fergus continuously for a year, or at least had not resided there continuously for a year during the 5 years immediately subsequent to Whitsunday 1866, and had not since then resided 5 years in any parish. The pursuer further averred, and it appeared from the proof led in the Sheriff Court, that during the period from 1866 to 1875 (with the exception of three periods of six months each, in 1867-8, 1871, and 1873-4, which were spent at farms at St Fergus) Webster had been working as a farm-servant on six-monthly engagements at farms in various parishes adjacent to St Fergus, none of them more than 5 miles distant from the house containing his children, and latterly also his wife, to whom he continued to give the necessary support. The children of the first marriage went out to service as they grew up.

The defender explained that during the whole period in question (except during the first period of six months mentioned above, when, being employed in St Fergus as a day-labourer, he lived with his children) Webster continued to pay weekly or fortnightly visits to his household, spending there Saturday night, or Saturday and Sunday night. In these circumstances the defender averred that Webster had not been 4 years continuously out of St Fergus, and had therefore not lost his residential settlement there. A proof was allowed, in the course of which the pauper stated—“With the various masters named I made no stipulation about getting home to see my wife, as I knew it was a customary thing for me to get home at certain times.… I never required to go back to my house. I kept the house just to accommodate my family, but in all other respects I resided in the parishes where I was engaged. There were no houses for married men on any of the farms. Had there been houses, I would have preferred to have lived there, provided I could have made a suitable arrangement with the farmer.”

Page: 205↓

Much of the proof related to the question whether farm-servants in the position of the pauper had a customary right to get home for the Sunday. This appeared to be the invariable practice for both single and married servants.

The Sheriff-Substitute ( Dove Wilson), on 14th July 1876, found that during the period subsequent to Whitsunday 1866 the pauper did not reside in St Fergus continuously for one year at least, and found as matter of law that the pauper could not be held to have retained his settlement in St Fergus. He added the following note:—

“ Note.—The question at issue in this case is, Whether the pauper resided continuously for at least a year in the parish of St Fergus after Whitsunday 1866? This is a simple question of fact, and when it has been determined, the law applicable to the case follows at once from the 76th section of the Poor Law Act.

It is conceded that the year's continuous residence which is requisite cannot be made up without counting one or more periods of six months, during which the pauper's residence was only what has been called ‘constructive.’

The pauper's usual mode of life was this:— He had a house which was occupied at first by his first wife and family. After that his sister and his family occupied it; and then his sister was succeeded in its occupation by a second wife. This house for many years back was taken in St Fergus. Sometimes the pauper lived at home, working as a labourer; but much more frequently the pauper was hired out for periods of six months as a farm-servant. During these engagements he lived at the farm, visiting his home from the Saturday night to the Sunday night or Monday morning as frequently as he could. This seems to have been always once a fortnight, and sometimes two weeks out of every three. He did not follow this unenviable style of life because of any preference for a house in St Fergus, but simply from hard necessity, the farms on which he worked having no accommodation for his family. Prior to 1866 he had employment in St Fergus, and thus the periods he lived at the farm and those he lived at his house taken together made continuous residence. After 1866 it happened that the farms were not in St Fergus, and in order to make up ‘continuous residence’ in that parish it is contended that during the times he lived at the farms in other parishes he must be held to have ‘constructively resided’ at his house.

I do not think there is any authority in the decisions for carrying the doctrine of constructive residence to this extent. In Greig v. Miles ( 5 M. 1132) and Moncrieff v. Ross ( 7 M. 330) it was held that in order to continuous residence the continuous bodily presence of the pauper was not always to be required; but these cases were special, and, according to the subsequent case of Jackson v. Robertson ( 1 R. 342), are not to be taken as laying down principles applicable in different circumstances. There is no case which goes so far as to say that a person who is continuously or almost continuously at one place is to be held to have continuously resided at another because he had a house and family there whom he occasionally visited.

Under the Poor Law Act there are just two words whose applicability has got to be ascertained. In the first place, Was the stay of the pauper at any place or places continuous? and if it was, was the stay, in the second place, of such a character that it can appropriately be held to be residence? I think that the pauper was continuously at the farms and not at his house. He went to the farms for periods of six months at a time, and the intervals he was away from them were so few and short compared with the times during which he stayed at them, as to make no breach of continuity. On the other hand, it is plain that it would be an abuse of language to say that he was continuously at his house. The view is possible that he was not continuously either at the farms or at his house, but must be rejected, because perfect continuity is not to be expected in any case, and the periods at the farm were as continuous as any stay at any place can ever be expected to be. If it be held as settled, then, that he was continuously at the farms, can it be doubted that his staying there was ‘residence?’ if he had only worked there, and had his meals there, it would not have been enough, but when a person works, eats, and sleeps on the premises, I do not see what more he could do in order to reside upon them. He was not on the farm, moreover, fortuitously or casually, but on terms which gave him a right to a residence there.

The circumstances of the present case seem widely different from those of Greig and Moncrieff. There is little analogy between a sailor or a fisherman going from home in their respective vocations and a farm-labourer leaving his home in order to reside at the farm where he has to work. This case comes nearer to that of M'Gregor v. Watson ( 22 D. 965).”

The defender appealed to the Court of Session.

Authorities cited— Milne and Ramsay, 23d May 1872, 10 Macph. 731; Beattie v. Smith and Paterson, 25th October 1876; M'Gregor v. Watson and Shanks, 7th March 1860, 22 D. 965; Greig v. Miles, and Simpson, 19th July 1867, 5 Macph. 1132; Allan v. Shaw and King, 24th February 1876, 2 Rettie 463; Moncrieff v. Ross, 5th January 1869, 7 Macph. 331; Jackson v. Robertson, 7th July 1874.

At advising—