Scottish Court of Session Decisions

Lord Mure—In this case a question is raised as to the construction and application of the 76th section of the Poor Law Act of 1845, and the circumstances are free from any complication.

Brown, the pauper, was born in the parish of Ayr, but afterwards moved to the parish of Falkirk, where he resided long enough to acquire a residential settlement. After that he enlisted, and was absent from Falkirk for six years on duty with his regiment, and was never back in Falkirk during that period. He has since returned to Falkirk, but has not resided for a sufficient period to acquire a settlement.

The question raised is, whether although he was absent for six years, he yet retained his settlement because he was absent during that period on duty with his regiment? As matter of fact he has not resided in Falkirk for the period required by the 76th section to enable a person to retain a residential settlement; but it has been argued that as he was absent in the discharge of his duty, he somehow or other was resident in Falkirk. Several cases were referred to, in some of which there was absence from the parish of settlement for a considerable period, but in those cases there was always this element, that though the father was away his wife or family was left in the place where he had resided. That being so, it was held that there was constructive residence authorising the Court to hold that the father had substantially resided in the parish, since he was paying for a house there and supporting his family in it. These are the only cases in which the Court has held that there was constructive residence. I referred to some cases of that class in Beattie v. Smith and Paterson, 4 R. 21, and in all of them there was this same element, viz., that there had been a wife or family left, so that the difficulty explained by your Lordship in Crawford and Petrie v. Beattie, 24 D. 357, was got over, for in that case the lunatic had left no family when he went to the asylum.

In these circumstances the question arises whether the requirements of the 76th section are to be held as operative when the person is away on duty as a soldier, and has left no home, wife, or family behind. I cannot see how the doctrine of constructive residence can be brought in, and I therefore think that the provisions of section 76 apply to the case of a soldier who is absent for six years on duty.

Lord Shand—The words of the statute by which this question must be determined are these —[ reads as above]. These directly apply to the facts of the present case, for it is admitted that the pauper resided for five years in the parish of Falkirk, and thereby acquired a residential settlement, but that for a subsequent period of six years he had not resided for one year. That, I think, is an end of the case.

I agree with the test stated in the case of Crawford and Petrie v. Beattie, that the application of the section depends upon a question of fact, and the fact here is that there was no residence during the necessary period. It has been said, however, that although there was no residence, but only absence, that a certain privilege should be extended to the case of a soldier absent on duty, to the effect of holding him to be present when he was absent. I can find no good reason or ground for distinguishing his case from that of others similarly employed, and if this was to be said of him, the same might be said of every civil servant. His absence, again, was said to be involuntary. I do not agree with that remark, for his enlistment was voluntary; but whether voluntary or involuntary, I do not think it makes any difference.

The only appearance of an argument was that founded on the supposed analogy between the present case and that class of cases of which Deas v. Nixon ( sup. cit.) is one, but the latter are entirely different. In those cases, too, the same test would be applied—was there in fact residence during the period required? The answer would be in the affirmative, for the settlement was retained through the residence of the person's wife and family, and it could not be said that there was no residence, for there was the residence of the wife and family.

The Lord President and Lord Adam Concurred.