Scottish Court of Session Decisions

Isabella M'Farlane having for some time previous to her death in November 1885 been chargeable as a pauper in the parish of Eastwood, this action of relief was raised after her death at the instance of the inspector of poor of that parish against the inspector of poor of St Nicholas, Aberdeen, as the parish of her birth.

The facts of the case were these—The pauper was born in Aberdeen in the year 1811. There are two parishes in Aberdeen, St Nicholas and Old Machar. Andrew M'Farlane, the pauper's father, was a weaver and a soldier in the Fifeshire Militia, which was quartered in the barracks at Aberdeen, in St Nicholas Parish, from August 1810 to March 1812. There was no evidence that the pauper's mother had lived in barracks with her husband, and no evidence that she had ever lived in Old Machar.

There was produced this extract from the register of births and baptisms for the city parish of Aberdeen, i.e., St Nicholas parish—“Aberdeen, 11th April 1811.—Andrew M'Farlane,

Page: 87↓

soldier, Fifeshire Militia, and his spouse Janet Mackie, had a daughter born named Isabella, baptised by the Rev. James Paull, in presence of Janet Boyne and Mrs Smith.” There was also this entry in the register of baptisms in Greyfriars' Church, in the parish of St Nicholas, Aberdeen, in the handwriting of the Rev. Mr Paull—“14th April 1811.—Andrew M'Farlane, Fifeshire Militia, had a daughter baptised.” Mr Paull was chaplain of the forces. A declaration by the pauper before one of the Justices of the Peace for the county of Renfrew, taken shortly before her death, dated 26th October 1885, to the following effect, was also produced—“My name is Isabella M'Farlane, and I am seventy-four years of age. My father's name was Andrew M'Farlane, and I was informed that he was in the militia in Aberdeen, in which city I was told, and have always believed, I was born. My mother's name was Janet M'Kay or Mackie.”

The Sheriff-Substitute ( Brown) on 12th February 1887, after proof, pronounced this interlocutor—“Finds that the pursuer has failed to prove that the pauper in question was born in the defender's parish, assoilzies the defender from the conclusions of the action, &c.

“ Note.—This is a perplexing case, but after much consideration I have come to be of opinion that no satisfaction in connection with it can be obtained otherwise than by rigorously confronting the pursuer with the burden of proof which the law lays upon him. To the admissibility of some of the evidence, by which the question in dispute falls to be settled, there is possibly in strictness some legal objection, but the parties have agreed to introduce all the light that can be thrown into the case, even where that does not present itself in regular form, and in doing so it seems to me they have acted reasonably. My view, however, is that, with all the materials that have been collected the issue is unsolved.

“1. I hold there is legal evidence that the pauper was the daughter of Andrew M'Farlane, a weaver, who was in the Fifeshire Militia, and of his wife Janet Mackie. The pauper herself said so, the regimental documents produced show that there was an Andrew M'Farlane, a weaver, in that regiment between the years 1807 and 1813, and the baptismal certificate produced proves that spouses of the above names had a daughter baptised in Aberdeen on 11th April 1811, a date corresponding with the age which the pauper assigned to herself. There is the further corroborative evidence of the witness Mrs Scott, who was acquainted with the pauper's parents, and states their history in connection with Aberdeen, the father more particularly being a weaver and a militiaman.

“2. I also hold it to be, by sufficient evidence, established that the Fifeshire Militia was embodied and stationed in Aberdeen from about August 1810 until March 1812. It is a more doubtful point, but I also consider it to be proved, that that regiment occupied the barracks during their residence in this city. …

“3. If the identity of the pauper, as the daughter of Andrew M'Farlane of the Fifeshire Militia, is made out, it is undoubtedly proved by the extract above referred to, and by the register of baptisms in the handwriting of the Rev. Mr Paull, of the College Church, afterwards of Tullynessle, spoken to by his son, Mr Paull, advocate, Aberdeen, that the pauper was baptised in the parish of St Nicholas.

“4. Beyond these three propositions I am unable to find anything that can be said to fall within the category of proof. They no doubt in themselves present an unusual combination of circumstances, and there are other facts from which the probability of the pursuer's case may be very forcibly argued. There is evidence that a certain proportion of the wives and married soldiers lived in the barracks, and I impute the same rule to militiamen in residence; and apart from any special reasons assigned for it, I think there is an inherent probability resting on the gregarious habits of soldiers, that married men unable to find quarters in the barracks would look for them in the immediate neighbourhood. But disturbing elements here cut into the case, with the result, as it seems to me, of placing the pursuer within the action of the principle, which is a rule at once of logic and of law, that when the circumstances of a case are explicable by either of two hypotheses, these are mutually destructive and neither can receive effect. The following facts may be referred to in illustration of this position. The register of baptisms kept by the Rev. Mr Paull is really only a congregational record, and accordingly it contains numerous entries of persons residing out of the parish of St Nicholas, but resorting to the College Church from the adjoining parish of Old Machar. It is a well-settled principle of evidence that a baptismal register proves nothing beyond the fact of baptism, and that indeed was strongly emphasised by the present Lord President in the case of Beattie v. Nish, 5 R. 775, where he rejected a statement of the place of birth occurring in a certificate of baptism as any evidence that the birth took place as stated; but here the inconclusiveness of the register for anything but baptism stands established not only by presumption but proof. The pursuer urges the tradition in Mr Paull's family, of his father's connection as chaplain with the forces; but that is a consideration which seems to me to tell quite as much in favour of the defender, for within reasonable limits that would be an inducement for soldiers to take their children for baptism to his church in whatever parish they resided. Even on the assumption that the Fifeshire Regiment occupied the barracks, and that none of the troops were in billets, the residence of the pauper's father within the parish of St Nicholas, he being a married man, is only a matter of more or less probability. But the distinct weight of the evidence appears to me to be, that married soldiers, who had not accommodation provided for them in the barracks, were not placed under any military restriction as to where they should find quarters, and there is nothing therefore to make it an unreasonable supposition, destructive of the hypothesis on which the pursuer's case is built, that the pauper's father resided out of the parish of St Nicholas.… I think it is fairly in evidence that in 1811 the most of the town of Aberdeen was included in the parish of St Nicholas, but College Street, Jack's Brae, Hardgate, and other places in the parish of Old Machar were well built upon, and I think it cannot be held that the distance between these places, or some of them, and the barracks, was such as to proscribe a militiaman,

Page: 88↓

especially one who had leave to prosecute his trade, from finding a residence there. Upon what thin lines, no doubt unavoidably so, the case on both sides is built is shown by the attempt to prove the character of the houses in College Street, one of the nearest points in Old Machar to the barracks as regards ownership or occupancy. But without entering further upon the details of the evidence it appears to me to be impossible with reasonable certainty to affirm that the pauper was born in the parish of St Nicholas, and that entitles the defender to prevail.…

“5. In these circumstances I think it follows that the pursuer is directly within the principle of the case of Marykirk v. Liff and Bervie and Dundee, December 16, 1884, 3 Macph. 253, that the parish of chargeability if unable to show that the birth of a pauper took place in one of two adjoining parishes fails to discharge the burden of proof that rests on it, although it may be a necessary inference that the birth occurred in one or other of the two parishes. In that case the Lord Justice-Clerk stated the rule of law to be, and he subsequently repeated it as Lord President in the case of Nish, that such a claim as is here made is exactly in the position of a criminal charge against two accused persons, and that the case fails against both—both not being implicated, as is necessarily the case here, if the evidence does not determine on which of the two liability falls.”…

The pursuer appealed to the Sheriff ( Guthrie Smith), who on 12th April 1887 recalled the interlocutor of the Sheriff-Substitute, and found that at the date of her application for relief to the inspector of Eastwood the pauper had a settlement by birth in the parish of St Nicholas, and granted decree for the sum of aliment due from the 14th of June 1882, when the pursuer gave notice of his claim.

“ Note.—I cannot help thinking that in this case the Sheriff-Substitute has been too strict. The time has gone by for evolving legal riddles out of the work of relieving the poor. It is a business of a very practical kind, and while no parish is to be held liable for advances without reasonable evidence that the pauper truly belongs to it, it is really too much to expect inspectors to be able to trace, as exactly as if they were claiming some rich succession, the early history of the unfortunate persons who in their old age, and after spending often a wandering life in the humblest ranks of society, find an asylum in the poorhouse. The only interest the public have in the question is, that it shall be made reasonably certain that the pauper was born in the parish somewhere, where or in what particular spot is of no moment, unless, as curiously enough has sometimes happened, the house is exactly on the line which divides two parishes.

“The pauper Isabella M'Farlane applied to Eastwood for relief in October 1877, she was then sixty-six years of age, and according to her own declaration her father's name was Andrew M'Farlane, who was in the militia in Aberdeen; her mother's name was Janet Mackay or Mackie, and she had always believed that she was born in the city of Aberdeen. The defender observes that this statement does not prove much, for the city of Aberdeen is a wide term, and although in 1811, when the pauper was born, the barracks were occupied by the Fifeshire Militia, and there was in it a soldier of the name of Andrew M'Farlane, who is abundantly identified as the pauper's father, it by no means follows that being a married man he would live in the barracks, and if not in the barracks, who can tell that he did not live outside of the parish of St Nicholas altogether. Old Machar Parish was then indeed not so populous a part of Aberdeen as it is now, but it is not proved that the pauper was not born there. I think that the practical answer to this ingenious reasoning is, that this would have involved a considerable walk to and from the barracks, and the probabilities are that M'Farlane lived either at or near the scene of his occupation. Further, in the Register of Births and Baptisms kept for the City Parish of Aberdeen, there is this entry under date 11th April 1811—‘Andrew M'Farlane, soldier, Fifeshire Militia, and his spouse Janet Mackie, had a daughter born named Isabella, baptised by the Rev. James Paull in presence of Janet Boyne and Mrs Smith.’ Dr Paull was then the minister of Greyfriars in the parish of St Nicholas. There is a similar entry in his own private register of baptisms—‘11th April, 1811, Andrew M'Farlane, Fifeshire Militia, had a daughter baptised,’ and it contains about thirty entries of the baptism of children born in the regiment, which came to Aberdeen in 1810, and occupied the barracks till 18th March 1812.

“It is true that an entry in a baptismal register proves nothing but the fact of the baptism, and if the entry bears that the child was born in another and distant parish, it has been rejected as proof of the place of birth, because the registrar must have got his information on that point at second hand. This was held in the case of Beattie v. Nish, which is referred to by the Sheriff-Substitute ( 5 R. 775). But in that case the Lord President pointed out wherein the proe bative value of such an entry consists when the place of birth is the matter in issue. ‘It will be presumed,’ he said, ‘in the general case, from the terms of the entry in such a register that the child baptised was born in the parish.’ It is, however, a presumption only, or, as has been said in an English case, the register of baptism per se is not evidence of the place of birth. If the child were then very young the register would be presumptive evidence that it was born in that parish where it was baptised, but if the child were not then young the circumstances of its having been baptised in a particular parish would afford no presumption that it was born there— R. N. Petherton, 1826, 5 B. & C. 508. Applying these principles to the evidence adduced by the pursuer, I think it is reasonably certain, in the absence of any circumstances leading to a contrary inference, that the pauper was born in the parish of St Nicholas.” …

The defender appealed to the First Division of the Court of Session, and argued—It was not proved that the pauper was born in the parish of St Nicholas. It was most probable she was born in Old Machar. The Rev. Dr Paull's register was only a congregational record. The entry in the baptismal register proved nothing but the fact of baptism— Beattie v. Nish, March 19, 1878, 5 R. 775; Anderson v. Mackenzie & Jack, December 16, 1864, 3 Macph. 253; Petherton, 5 B. & C. 508. The pursuer's evidence would not be enough in

Page: 89↓

a case of succession, and was not enough here.

Argued for the respondent—Questions such as the present depended on a balance of probabilities. The entry of baptism, taken along with the pauper's declaration, was sufficient— Hay v. Murdoch, January 19, 1854, 16 D. 364; Parish of Lady v. St Cuthberts, November 20, 1873, 11 S.L.R. 78. There was reasonable certainty that the pauper was born in St Nicholas Parish. The written evidence was more satisfactory than the Sheriff-Substitute allowed, for the register for the City or St Nicholas Parish was one of births and baptisms. This shifted the onus. Evidence was satisfactory in such a case which would not be held sufficient in a case of propinquity— Hay v. Murdoch, supra.

At advising—