Scottish Court of Session Decisions

In the first of these actions James Roger, inspector of poor for the parish of Rhynie, sued James Harvey and John Morison, respectively, inspectors of poor for the parishes of Gartly and Clatt, for payment of a sum disbursed on behalf of a pauper named Helen Grassick or Scott. The pauper was wife of George Scott, farm servant at Auchmenzie, parish of Clatt, and on 22d Sept. 1877 she had become chargeable to the parish of Rhynie (where she was then residing) in respect of having become insane. She had married George Scott in June 1848, and till Whitsunday 1877, when she had taken up her residence in Rhynie, she had resided in a house at Knappertknowes in Gartly parish, rented by her father until 1854, and subsequently by her husband. Scott, her husband, from the time of his marriage to the date of chargeability of his wife, was sometimes employed at jobbing work, but for the greater portion of that period he was employed as a farm-servant on six-monthly engagements. When so employed at jobbing work he resided in the house occupied by his wife and family at Knappertknowes; but when under six-monthly engagements as a farm-servant he resided on the farm where he happened to be at the time, and visited his wife and family once a week, or once a fortnight, on Saturdays, and usually remained with them from Saturday night till Sunday evening or Monday morning. Scott's engagements were in Gartly and some of the neighbouring parishes. In particular, he was engaged continuously on various farms, all in the parish of Gartly, for a period of six and a-half years from Martinmas 1851 to Whitsunday 1858, and thereby acquired a residential settlement in that parish. He was afterwards engaged at intervals on several farms in that parish for periods of six months until Martinmas 1871. From that date to 23d September 1877, when his wife became chargeable in Rhynie, a period of five years and ten months, he had been constantly employed at Auchmenzie in the parish of Clatt. Scott's birth parish was Rhynie.

The pursuer maintained that Scott and his wife had a residential settlement in Gartly or in Clatt.

He pleaded, inter alia—“(1) The settlement of the said Mrs Helen Grassick or Scott is either in the parish of Gartly, where her husband had a house, and where he maintained his wife and family, with whom he lived when engaged at jobbing work, and periodically visited when under half-yearly engagements, or otherwise her settlement is in the parish of Clatt, where for five years and ten months he remained continuously under six-months' engagements.”

The defender Harvey pleaded, inter alia—“(1) The residence of the said George Scott's wife and family in the parish of Gartly, while he himself was resident in other parishes, is insufficient to establish a residential settlement therein for his wife. (3) Even assuming that the said George Scott did at one time acquire a residential settlement in the parish of Gartly, the residence of his wife in that parish (he himself being resident elsewhere) is insufficient to enable him to retain such a residential settlement, and the same has been lost by reason of his failure to reside in the said parish continuously for at least one year during each subsequent period of five years, and the defender, as inspector of the poor of the said parish of Gartly, is entitled to be assoilzied, with expenses.”

The defender Morison pleaded, inter alia—“(2) The residence of the said George Scott so acquired

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has not been lost by absence from the parish of Gartly since Martinmas 1871, his work at Clatt during that period having been incidental to his residence in Gartly, which was still maintained.”

The Sheriff-Substitute ( Dove Wilson) found that the settlement was in Gartly parish, and therefore decerned against the inspector of that parish. He added this note:—

“ Note.—The facts of this case as admitted by the parish of Gartly do not seem to me to differ in any material respect from the case of Cruickshank v. Greig, 10th January 1877, 4 R. 267, however well they may illustrate the aptness of the remark made there by Lord Gifford—‘that cases of this class have a tendency to get narrower, each successive case presented being in advance of and more difficult than its predecessor.’ The facts are the familiar ones, the results of the want of cottages for labourers at the places where they work, which again is a result in part of the law of settlement, which makes the having of a home in a parish a ground for imposing on it the burden of maintaining a pauper.

In this case the pauper married and set up house in the parish of Gartly in the year 1848. Till 1854 the house was taken and the rent paid by his father-in-law, but from that date till 1877 the pauper was himself the tenant, and there all along the pauper's family lived. The pauper himself did not live there, but was a labourer at farms on half-yearly engagements, only returning home for the Saturday or Sunday night every two or three weeks. Thus far the facts are exactly those of Cruickshank v. Greig. The points where they differ are, that in that case the pauper had been long enough engaged at farms in the parish of his house, after first taking it, to have himself acquired a residential settlement—while in this case it is said that his engagements were never long enough at one time in the parish of his house to have founded a claim for a settlement upon his personal residence. It is also said that the pauper here was long enough at one place in another parish (Clatt) to have acquired for him a settlement there. The case of Cruickshank v. Greig was therefore a case of retaining a settlement, while this is a case of acquiring one, and of acquiring one in the face of five years' personal residence at one place in another parish from that where his family resided.

Neither of these differences seem to me to be material. Of course, if the case of M'Gregor v. Watson, 7th March 1860, 22 D. 965, which was relied on in the lower Court in Cruickshank v. Greig, was still a precedent, the difference would be material. In that case it was held, in circumstances like the present, that the residence of the wife and family was not the residence of the husband, and did not count in the acquiring of a settlement to him. But Cruickshank v. Greig, although it does not say so, really overrules that case. It is impossible to give any reason for laying down that there is to be a difference in the character of the residence for acquiring and the residence for retaining a settlement. The statutory rule as to residence for each purpose is exactly the same, and the word residence must mean the same in both cases. The only way the matter can be affected by the difference between acquiring and retaining is that there is a presumption in favour of retaining which there is not for acquiring, and that in case of doubt the presumption may have a certain value. But here there is no room for doubt. As soon as the law has settled the meaning of the word residence there is an end to any doubt about where this pauper's residence was, and if the question of where the pauper's home is settles the matter, there is no doubt that the pauper's home was at his house at Gartly. For nearly thirty years his home was there, and the place where he personally might be was only an accident depending on where he got work. Whether he got his work in Gartly or out of it—whether he got work a long time or a short time in it, or in one of the adjoining parishes—did not in the least affect the question of where his residence was, if consideration is due at all to the place where his family or headquarters were. It seems to me to be clear that, if the actual residence of the pauper at the farms is to be disregarded, and his constructive residence at the house is to be regarded, in any question of settlement the rule must apply both to acquiring and retaining. If this be so, there can be no question that the pauper acquired a settlement in Gartly.....”

The Inspector of Gartly appealed to the Court of Session.

Authorities quoted— Beattie v. Smith and Paterson, Oct. 25, 1876, 4 R. 19; Milne v. Ramsay, May 23, 1872, 10 Macph. 734; Cruikshank v. Greig, January 10, 1877, 4 R. 267; M'Gregor v. Watson, March 7, 1860, 22 D. 965.

The second case, of Simpson (Inspector of Kincardine O'Neil) v. Kennedy (Inspector of Coull), which raised a similar question, and was also an appeal from a decision by the Sheriff-Substitute of Kincardine ( Dove Wilson), was heard at the same time with the above. The only point of difference, as stated by the Sheriff-Substitute in his note, was that “Kincardine O'Neil got no benefit from being the parish of the residence of the pauper, inasmuch as the shops at which his earnings were spent were in another parish.”

At advising—