Scottish Court of Session Decisions

In this case David Caldwell, Inspector of Poor of the parish of Ayr, sued Archibald Dempster, Inspector of Poor of the City Parish of Glasgow, in the Sheriff Court at Glasgow for a sum of £11, 15s. for past, and a further sum of £58, 13s. 4d. for future, aliment of a pupil child, William M'Culloch or M'Pherson, who had become chargeable to the parish of Ayr, and of liability for whose support that parish contended that the City Parish of Glasgow was bound to relieve it.

The admitted facts were as follows—The child in question was born in the City Parish of Glasgow on the 29th day of April 1874. It was the illegitimate child of a woman named Janet M'Culloch, who was born in the year 1845 in Ballymuir Parish, in Larne Union, County Armagh, Ireland. Janet M'Culloch never had a settlement in Scotland. On 21st January 1882 she deserted the child, and left it destitute (along with two others) in a dwelling-house in the parish of Ayr. Her place of residence at the time of this action was unknown. Since the date of its mother's desertion the child had been maintained at the expense of the parish of Ayr, and the question was whether that parish, as the parish where the child was found destitute, or the City Parish, as the parish of its birth, was liable.

The Parish of Ayr pleaded—“(2) Neither the child nor his mother having a settlement in the parish of Ayr, the pursuer is entitled to be relieved of the past and future maintenance of the child as claimed. (3) The child being illegitimate, his mother having no settlement in Scotland, and having deserted him, the defender, as representing the parish of the child's birth settlement, is bound to relieve the pursuer, and to make payment of the sums craved in name of past and future aliment.”

The City Parish pleaded—“(3) The pauper's mother being alive and having a settlement in Ireland, and the pauper being an illegitimate pupil, the defender is entitled to absolvitor with expenses; or alternatively, (4) The pauper having a derivative birth settlement in Ireland, the defender is entitled to absolvitor with expenses.”

The Sheriff-Substitute ( Guthrie) pronounced

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this interlocutor:—“Finds that it is admitted on record that the pauper, a pupil of whose aliment the pursuer seeks relief, was born in 1874 within the defender's parish, the City Parish of Glasgow, and that he is the illegitimate child of Janet M'Culloch, an Irishwoman by birth, who has no settlement in Scotland: Finds that it is alleged that the said pupil became chargeable along with the younger children of the said Janet M'Culloch, through her deserting them within the pursuer's parish on the 21st January 1882: Finds that in these circumstances the City Parish of Glasgow is not liable as the parish of the said child's birth in repayment of the advances made by the pursuer for his aliment: Therefore assoilzies the defender,” &c.

“ Note.—This case cannot be distinguished from Greig v. Young, 1878, 5 R. 977. It must now be held, as the result of that case, and of M'Rorie v. Cowan, 1862, 24 D. 723, that a parish relieving one whose settlement is in England or Ireland, has no remedy except by removal, so that if removal under the statutes be impracticable, as in the case of a lunatic wife whose husband is not a pauper, it must just submit to the misfortune. Here the question is, whether on the assumption that the pauper's mother has deserted him, the child has a settlement in the parish in Scotland in which he was born. In Greig v. Young the circumstances were the same, with this difference, that the bastard's mother was then undergoing a sentence of penal servitude during the period when relief was given, while in the present instance the mother is said to have voluntarily deserted her children. Although the reasoning in Greig v. Young, as in some other recent cases in this branch of the law, is by defect in the report, or for some other cause, not free from obscurity, I think that the difference which I have mentioned is not material, and that this case must be decided in the same way, both upon that authority and upon principle.

A pupil has only a derivative settlement, and takes his birth settlement only on reaching puberty— Craig v. Greig and M'Donald, 1863, 1 Macph. 1172; M'Lennan v. Waite, 1872, 10 Macph. 908; Ferrier v. Kennedy, 1873, 11 Macph. 402; Gibson v. Murray, 1854, 16 D. 926. This rule rests not only on the legal incapacity of the pupil, but on the principle established in Barbour v. Adamson, that the unity of the family is as far as possible to be maintained in questions of settlement. As a rule a pupil takes his father's settlement whether it be founded on residence or birth, and the exceptions to the rule occur only when, in order to maintain the unity of the family after the father's death, the settlement which pupils derive from their father is suspended, and they follow that of their mother when she is an object of parochial relief— Greig v. Adamson, 1865, 3 Macph. 575; Carmichael v. Adamson, 1863, 1 Macph. 453; M'Lennan v. Waite cit. Beattie v. M'Kenna, 1878, 5 Macph. 737; Hendry v. Makison, 1880, 7 R. 458.

There is not an exact analogy between the case of a deserted pupil whose parent has no settlement in Scotland, and that of the deserted Scotch wife of an Englishman or Irishman who has no settlement in Scotland, and it may be that any confusion and difficulty which surround this question partly arise from the notion that the cases are precisely alike. In the latter case the husband's desertion is equivalent to his death — Beattie v. Greig, 1875, 2 R. 923; Greig v. Simpson, 1876, 5 R. 977; Hay v. Skene, 1850, 12 D. 1019. The obvious reason for this is found in the hardship of relegating a Scotswoman to the distant and possibly doubtful settlement of a foreign husband, and the effect is that the wife becomes sui juris, takes her own maiden settlement, and becomes capable of acquiring another by residence, not only for herself but for the children in family with her. But the effect of the desertion of pupil children is entirely different. A wife's person is sunk only by reason of her marriage, but a pupil has no legal person and no legal settlement in his own right by reason of sheer incapacity, so that, even if in his case the desertion and the death of the parent be held to be equivalent, the legal result is not the same, but on the desertion, as on the death of the parent, the existing derivative settlement must be held to survive to the pupil. It is still more important to observe that the rule settled in regard to the wife has the effect of maintaining the unity of the family, while if pupil children are allowed to have a birth-settlement in Scotland, the result will in very many instances be to break up families and deprive pauper children of the advantage, whatever it may be, of being brought up in the society or neighbourhood of their brothers and sisters.

I am satisfied for these reasons that I am bound to regard the case of Greig v. Young as ruling this case, and as laying down a principle of considerable importance, and one which overrules the doctrine stated in Mr Guthrie Smith's book at p. 299. On the authority of two Outer House cases, and an obiter dictum of the Lord President, that doctrine is apparently irreconcilable with the principles of the case referred to above, and with many of the later opinions of the Lord President. It is founded only on the terms of the older Scots Acts— e.g., 1663, c. 16; 1672, c. 18. These Acts undoubtedly impose liabilities upon the parishes in which poor persons or vagabonds and idle persons were born. But since that time the law of settlement has been largely developed by judicial decisions and by the Act of 1845, and there does not appear to be any stronger reason for resorting to the birth-settlement of a pupil where he has none by residence or ‘haunting’ (to use the language of that age), than there is for applying these statutes strictly to the case of a married woman or lunatic, or of children whose Scots parents have died. In these cases judicial construction has limited and defined the effect of the statutes establishing the principle of birth-settlement, and it would seem that the principles so established and acted upon for generations ought to be carried out in this case also. The Act 1661, c. 38 (Instructions to Justices, &c.), is rather more explicit, as it directs the Justices of Peace to appoint overseers who are ‘to make due trial and examination of the condition and number of, inter alia, all orphans and other poor children within the said parish who are left destitute of all help.’

This, however, is simply a direction regarding the administration of the Poor Law, similar to that which we find in the 70th section of the Act 8 and 9 Vict. c. 83, and it is by no means necessary to regard it as laying down a rule as

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to settlement altogether at variance with the principles upon which modern decisions and practice are founded.”

The pursuer appealed to the Court of Session.

Their Lordships of the Second Division “in respect of its general importance, appointed the parties to prepare minutes of debate on the question—“Whether an illegitimate pupil child born in Scotland of a mother who has no settlement in Scotland, and becoming a pauper within a parish in Scotland in consequence of the desertion of the mother, is chargeable to the parish of its birth?”

The pursuer, in his minute of debate, argued—The judgment appealed against rested on two entirely distinct grounds, (1) that the question at issue was settled by the principle established by M'Crorie v. Cowan, March 7, 1862, 24 D. 723 and Greig v. Young, Jan. 21, 1878, 5 R. 977; (2) that motives of social expediency, as illustrated in Barbour v. Adamson, May 30, 1852, 1 Macq. 376, dictated here a judgment against the relieving parish. On the first ground, the two decisions referred to were not conclusive. In M'Crorie v. Cowan the sole ground of judgment was that, stante matrimonio, a wife could have no settlement apart from her husband. Greig v. Young was an extension and application of that principle to the case of the illegitimate pupil child of an Irishwoman who had acquired no settlement in Scotland, and who was enduring a term of penal servitude at the time when the child was relieved. And as in M'Crorie v. Cowan the wife's fate was held to be linked to her husband's, so in Greig v. Young the bastard pupil's fate was held to be linked to its mother's. If the mother's confinement in prison were to be held equivalent to her desertion, then doubtless Greig v. Young ruled the present case. But it had never yet been so decided. The only form in which such a question had been raised was in an action for divorce— Young v. Young, November 16, 1882, 10 R. 184—where it was held that confinement in prison was not equivalent to wilful and malicious desertion in the sense of the Act 1573, c. 55. On principle it was impossible to hold imprisonment equivalent to death or to desertion. In the case of death the severance is involuntary and perpetual; in the case of desertion, voluntary and for an uncertain period. The severance caused by imprisonment is not voluntary, and it is of a fixed and known duration; and so, whilst it has for long been settled that in questions of poor-law desertion is equivalent to death, there was neither principle nor authority for the extension of the equation to imprisonment, though certain expression were reported to have fallen from Lord Deas and Lord Mure in Greig v. Young which might seem to favour such extension. Their observations were founded on the case of Barbour v. Adamson. In that case the Court held that the father being in penal servitude the children were so circumstanced as to be entitled to relief. Being an able-bodied man, if he had been living with his children they would not have been entitled to relief. Had he been dead or in desertion they would have been entitled to relief, and hence in a question of title to relief it certainly established the principle that imprisonment is equivalent to death or desertion. But it did not establish that the children's fate is linked to the father's where the father has no settlement at all in Scotland. And hence if Greig v. Young were decided on the understanding that Barbour v. Adamson settled that question, then Greig v. Young must have been wrong, and the all-important fact must have been overlooked that in Greig's case the mother had not, whilst in Barbour's case the father had, a Scotch settlement. If, then, the parents’ imprisonment in these two cases were held as equivalent to death only to the effect of determining the question of the title of an able-bodied person's child to demand parochial relief at all, then to have decided Greig v. Young differently would have been to run counter to the judgment of the whole Court in M'Crorie v. Cowan. And so in the present case, to affirm the judgment of the Sheriff-Substitute would be to run counter to the still earlier case of Hay v. Skene, June 13, 1850, 12 D. 1019. If this decision were sound law, then it ruled the present case just as M'Crorie v. Cowan ruled Greig v. Young. In questions of poor law an analogy obtained between pupils and married women. But it had been maintained that Hay v. Skene cannot be considered authoritative since M'Crorie v. Cowan, and this contention received considerable support from the views expressed by the Lord Justice-Clerk (Inglis) in the latter case, as well as in the case of Carmichael v. Adamson, February 28, 1863, 1 Macph. 452. But these views were not shared by any of the other Judges in these two cases. But it was now authoritatively settled that desertion was equivalent to death in all questions of parochial relief— Greig v. Simpson, May 16, 1876, 3 R. 642. The most conclusive answer, however, to the contention that the authority of Hay v. Skene was destroyed by M'Crorie v. Cowan was to be found in the fact that the principle of the former case has been since followed and applied, once in the case of Gibson v. Murray, June 13, 1854, 16 D. 926, and again in Johnston v. Wallace, 11 Macph. 699. The principle which the cases referred to seemed to establish—viz., that when the head of the family was dead, or in desertion, and had no settlement in Scotland, the dependent branches of the family took their own birth settlement—had in two instances been applied by Lords Ordinary to cases where the object of relief was, not as in decisions referred to, a wife, but a pupil child— Greig v. Hay, May 18, 1858, 1 Poor Law Mag. 37; Muir v. Thomson, November 7, 1873, 2 Poor Law Mag. (N.S.) 95. But the Sheriff-Substitute found a reason for not applying the principles settled in the case of husband and wife to a case like the present, of parent and child, because of the essential difference between the status of a married woman and of a pupil child. There was both principle and authority against this proposition— Carmichael v. Adamson, 1 Macph. 462. Every Scotch born person had a settlement in the parish of birth by the mere fact of having been brought into the world therein, and such birth settlement, which was the only one originally known to the law (1579, c. 74) could never be lost or extinguished, however it might be superseded or suspended by another effectual settlement having been obtained — Carmichael v. Adamson, 1 Macph. 461, 465; Gibson v. Murray, 16 D. 929, 930—and this doctrine, that the birth settlement of a pupil child remains always available, has been repeatedly acted upon, the latest

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instance being the case of Russell v. Greig, 8 R. 440. The law being that where a man has no settlement in this country, his deserted wife becoming a pauper is chargeable to her own birth parish in Scotland; and it being erroneous to say that a pupil “by sheer incapacity” could have no legal settlement, the only feature of difference between the status of a married woman and of a pupil suggested by the Sheriff-Substitute disappeared; the analogy for purposes of parochial law between the two classes of persons was exact, and the pupil—equally with the married woman—when pauperised by the desertion of the person upon whom it was dependent became chargeable to its own birth parish. (2) There only remained for consideration the second ground upon which the Sheriff-Substitute based his judgment—viz., social expediency—the maintenance of the family unity. Undoubtedly Barbour v. Adamson, on which the Sheriff-Substitute relied, did establish the principle that where, consistently with the rules of law, it could be done, the unity of the family ought to be preserved. In laying down the principle, however, the Lord Chancellor had carefully guarded his opinion so as to prevent its ever being used as a sanction for the breach of any settled rule of law. If the pursuer's argument upon the first ground of judgment were sound, then to apply the principle in the present case would certainly be a violation of well settled law. This second ground of judgment, was, however, open to the more serious objection that it really was not applicable to cases like the present at all. The children of Janet M'Culloch were, no doubt, born in different parishes and deserted in the same parish; but they might all have been born in the same parish and left by their vagrant mother one by one in the different parishes she passed through. If the rule applied by the Sheriff-Substitute in one set of circumstances were applied, as it must, in the other, the result would be a complete breaking up of the supposed family unity. This illustrated the danger of proceeding on any purely sentimental ground, the applicability of which to questions of disputed settlement had been so frequently of late years deprecated. Uniformity and simplicity should be the principal aim in determining such questions, and it was far more in accordance with the rules as to parochial settlements already laid down by the Court that the birth settlement which was undoubtedly in actual existence should be made chargeable than that the liability should be thrown on a parish with which the pauper's only connection was that he chanced to be there left destitute.

The defender argued—There could be no doubt as to the primary obligation imposed by statute on the parish in which the child has become destitute (8 and 9 Vict. c. 83, sec. 70). The duty of relieving the destitute found within its bounds thus imposed upon every parish, irrespective of any consideration as to the true settlement of the person relieved, could only be terminated (1) by the cessation of the state of destitution; (2) the removal of the destitute person in terms of the statutory powers to that effect; or (3) the discovery by the relieving parish of the pauper's parish of settlement, or of some individual legally bound to maintain him— Gray v. Fowlie, March 5, 1847, 9 D. 811; Beattie v. Wilson, January 25, 1861, 23 D. 412; Hopkins v. Ironside, January 27, 1865, 3 Macph. 424. In the present case no relation legally liable to maintain the pauper had been found, and if the remedy of removal were competent it was not sought to put it in force. It was therefore incumbent on the relieving parish, if it were to escape from its present liability, to establish affirmatively that the City Parish of Glasgow was, in respect of its being the parish of his birth, the parish of the child's settlement. But for the fact that the child in question had been deserted by its mother, the case for the pursuer would be plainly irrelevant. The nonage of the person relieved had a material bearing on the case. When the pauper was not subject to any such legal disqualification, much, if not all, incumbent on the relieving parish was accomplished when the parish of the pauper's birth was discovered. The remedy, then, was either (where that parish were in Scotland) an action for reimbursement and relief from future maintenance, or (when in England or Ireland, and the pauper had no settlement in Scotland), if that remedy were not available, the loss rested on the relieving parish— M'Crorie v. Cowan, March 7, 1862, 24 D. 723; and Greig v. Young, January 21, 1878, 5 R. 977. But where the person relieved was in pupillarity, the question was no longer—What is the parish of the destitute person's birth? but—What was the settlement of the head of the family to which he belonged? Hume v. Halliday, December 22, 1849, 12 D. 411. This child being a bastard, his primary settlement during pupillarity was that of his mother, whether constituted by birth, industrial residence, or marriage — Hay v. Thomson, February 6, 1856, 18 D. 510. It was therefore clear that, unless the fact of desertion had operated a material change in that respect, the settlement of the pupil in question, being the illegitimate son of a woman whose only settlement was Irish, was in Ireland, and not in the parish of his own birth. Where the relieving parish was Scottish and the parish bound to maintain in either England or Ireland, the remedy open to the former was removal under the 77th section of the Poor Law Act of 1845, and now regulated by sections 1 and 2 of the Poor Law Amendment Act of 1862. This statutory right of removal of English or Irish paupers was the counterpart of the direct claim for reimbursement competent against the parish of settlement when that was in Scotland— Leslie v. Gibson, June 15, 1852, P. L. Mag., June 1861. Nor did it concern the parish of birth to inquire whether it were competent or possible to carry out the removal. The remedy was open to the relieving parish; difficulties preventing the removal would not strengthen a claim against another parish and on a different ground. The relief must be continued till the statutory limit of the period during which it was to be given had been reached. The question was, What was the parish of settlement? and if the birth parish were not the parish of settlement, it could not be made liable on any other ground. This was expressly determined in M'Crorie v. Cowan. But it was maintained that the desertion of the child by its mother was equivalent to her death, and that in consequence the parish of its own birth was now its true settlement. In answer to this the defender submitted (1st) that the

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doctrine that desertion was equivalent to death was not of universal application; and (2d) that even assuming it to be applicable to the case of a pupil child deserted by the parent from whom it had derived a settlement, it by no means followed that the settlement so derived was lost to the child, to the effect of making the parish of its birth liable for its maintenance. The cases in which desertion had been held equivalent to death had been uniformly cases of wives deserted by their husbands. In such cases it was now settled law that the usual consequences of a husband's death supervened— Greig v. Simpson and Craig, May 16, 1876, 3 R. 642. But this rule had not yet been applied to the case of pupil children deserted by the head of their family. While there was an undoubted analogy between the cases, there were certain broad lines of distinction. The wife's legal incapacity, or rather the suspension of her settlement, flowed from and ceased with the marriage. But the incapacity of the pupil was absolute. Destitute of legal personality, he had no identity, so far at least as parochial settlement was concerned, separate from that of his parent. He never had an operative settlement capable of being suspended. A married woman had a radical right to what had been called her maiden settlement—the radical settlement in the parish of her birth which was not obliterated by marriage, but remained ready to come into operation whenever the superinduced derivative settlement from her husband should cease to be available. This right to a settlement differed not only in degree but in kind from what might be called the potential settlement of a pupil which never had an active existence. She may then either retain the settlement of her husband or lose it by non-residence. Her birth settlement would then revive, and would become that of her children, or she might acquire a new one. But not so the pupil, whose absolute incapacity continued and rendered him as then completely dependent on his mother as during his life he was upon his father.

By the operation of the rule in the case of a deserted wife the unity of the family was preserved. The preservation of the unity of the family was a cardinal consideration— Barbour v. Adamson. The family circle, deprived of its central figure, found a new rallying point in the deserted wife and mother. But to apply the rule to motherless children deserted by their father, or to bastards deserted by her who in the eye of the law is their only parent, would be in many cases to defeat this intention and to bring about the dispersion of the family. Especially if it were to receive the effect of relegating the pupils each to the parish of his own birth, it would defeat one of the chief purposes for which in the case of deserted wives it was called into existence. But even assuming that the rule was to be applied to the case of deserted children, as to that of deserted wives it did not follow that the liability of the parishes of the births of the respective children emerged ipso facto of the desertion. Deserted pupil children who had no surviving parent whose fortunes they might follow were of two classes—(1) Children whose mother had predeceased the date of their father's desertion; and (2) bastards deserted by their mother. In each of these cases the children had at the date of desertion a derivative settlement—the legitimate children that of their father, the bastards that of their mother. But they were incapable of acquiring a new settlement. In this condition they continued till puberty. On what principle could it be said that before that period they had lost the derivative settlement in right of which they stood at the date of desertion? If that settlement were within the United Kingdom, surely during pupillarity it, and not the parish in which the pupil was born, was liable for his maintenance. It followed that the derivative settlement which enured to the pupil child whose parent died or deserted it, continued to be its settlement during the whole period of pupillarity. The liability of the parish of the pupil's birth was latent until puberty. If not, at what period did it come into operation? According to the pursuer's argument, immediately on the occurrence of the death or desertion, and it might be conceded that the choice lies between these two periods. The result in certain cases would be dispersion of the family. The contention that a pupil retains during the whole period of his pupillarity the settlement of its parent is not only sound in principle, but has already received judicial approval in various aspects— Barbour v. Adamson, May 30, 1853, 1 Macq. 376; Gibson v. Murray, June 10, 1854, 16 D. 926; Craig v. Greig and M'Donald, July 18,1863, 1 Macph. 1172; M'Lennan v. Waite, June 28, 1872, 10 Macph. 908; Ferrier v. Kennedy, Feb. 8, 1873, 11 Macph. 402. In the law of England a similar principle would seem to be applied. The rule as to the settlement of children, both legitimate and illegitimate, was fixed by the statute 4 and 5 Will. IV. c. 76. So far as bastard children were concerned, the matter was regulated by the 71st section of that Act, by which such child had the settlement of its mother until it attained the age of sixteen or acquired a settlement in its own right. A decision had been pronounced under this section similar to that of Craig v. Greig ( Bodenham v. St Andrews, Worcester, Jan. 19, 1853, 1 El. and Black 465). It was similarly decided in other cases— The Queen v. Suttou le Brailes, Jan. 16, 1856, 5 El. and Black, 814; The Queen v. St Mary Newington, April 29, 1843, 4 Ad. and El. Q.B. 581. From the principles which underlie the opinions expressed by the Judges by whom these cases were decided, it would seem to be clear that the settlement of a pupil being always that of its guardian, the parish of its own birth cannot under any circumstances be liable for its maintenance during pupillarity if the gnardian's settlement be within the United Kingdom. In the recent case of Greig v. Young, June 21, 1878, 5 R. 977, this rule was applied under circumstances which were nearly identical with those of the present case, the only distinction between them being that in Greig's case the immediate cause of the chargeability of the pupil was the fact of the mother's undergoing a sentence of penal servitude, while in the present case it was the mother's voluntary desertion. Even if desertion by a parent were to be held equivalent to death, upon what principle was voluntary desertion to be distinguished from that which was the result of punishment for misconduct? If no sound distinction could be drawn, Greig v. Young was conclusive, in deciding which the Court proceeded upon the judgment of M'Crorie v. Cowan, March 7, 1862, 24 D. 723.

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If, then, the cases of M'Crorie and Greig were well decided, and if the argument submitted upon the effect of desertion were well founded, it necessarily followed that the birth parish of the pupil child of a parent whose settlement is in the United Kingdom could not under any circumstances be made liable to support him during pupillarity. Only two cases (both decided in the Outer House) conflicted with this contention— Greig v. Hay and Maclaine, May 18, 1858, 1 Poor Law Mag. 37; Muir v. Thomson, November 7, 1873, 2 Poor Law Mag. (N. S.) 95. The argument that the burden of supporting destitute children whose parents have had no settlement in Scotland is still regulated by the Poor Law Statutes of the sixteenth and seventeenth centuries—1535, c. 22, 1579, c. 74, 1661, c. 38—and which seemed to have received some sanction in the opinion of the Lord President in Carmichael v. Adamson, Feb. 28, 1863, 1 Macph. 452, was untenable, since (1) these statutes were not intended to apply to the case of children the settlement of whose parents was known or capable of being ascertained, and (2) since they are now practically superseded by the construction placed on the Act of 1845. These statutes in question were Scots Acts, and could only deal effectively with settlement in Scotland. When they were passed there was no remedy by removal out of Scotland. The effect of the contention founded on them would be to bring about in many instances the disruption of the family and the dispersal of its members during their pupillarity. In conclusion, he submitted the following propositions:-(1) That the child in question being illegitimate, took at its birth the settlement of its mother; (2) that such derivative settlement would have enured to the child if its mother had died during its pupillarity, and a fortiori it had not been lost by desertion; (3) that assuming the mother to have acquired no residential or derivative settlement, her present settlement was in the parish of her birth in Ireland; (4) that the remedy of the relieving parish was removal of the pauper to Ireland; (5) that if for any reason that remedy were not available, the liability of the relieving parish continued, and that, in any view, the difficulty or impossibility of effecting such removal could not have the effect of subjecting in liability the parish of the pauper's birth if it were not otherwise liable.

The defender also referred to the following authorities:—Stair i., 3, 5, and 13; Gibson v. Murray, June 13, 1854, 16 D. 926; Carmichael v. Adamson, Feb. 28, 1863, 1 Macph. 452; Greig v. Adamson, March 2, 1865, 3 Macph. 575; Craig v. Greig and M'Donald, July 18, 1863, 1 Macph. 1172; Hopkins v. Ironside and Wallace, Jan. 27, 1865, 3 Macph. 424; Barbour v. Adamson, May 30, 1853, 1 Macq. 376; Thomson v. Muir, July 19, 1850, 12 D. 1266; Thomson v. Scott and Aitchison, Feb. 26, 1851, 13 D. 783; Hay v. Scott, Nov. 23, 1852, 15 D. 62; Hay v. Skene, June 13, 1850, 12 D. 1019.