Scottish Court of Session Decisions

Lord Young—The facts in this case are these—The pauper is a widow, and she became a pauper first in the month of September 1885. She and her husband had resided at Maybole previously for a period sufficient to acquire a residential settlement, but they left that place for good and went to Ayr at Whitsunday 1881. In March 1885, which was very near the expiry of the four years, her husband was killed. His widow became a pauper, as I said, in September, when four years had more than elapsed since they left Maybole. Upon these facts the question is, whether the parish liable for her relief in September 1885 was Maybole, or the parish of her birth, viz., Stewarton?

We have opposing judgments by the Sheriff-Substitute and the Sheriff. The Sheriff-Substitute decided that the parish liable was Maybole, but he comes to that conclusion upon the ground that she had become a pauper in April 1885, which was within four years from her leaving Maybole. Parties, however, are agreed that she did not become a pauper until September 1885, and that the Sheriff-Substitute's ground of judgment is bad. The Sheriff was of opinion that Dalmellington was liable, but parties are also agreed that that judgment is erroneous.

The deceased had a residential settlement in Maybole at his death, and that survived to his widow and children. Therefore in March 1885 the widow and children had a residential settlement in Maybole. But in September 1885 the provisions of the Act of Parliament became applicable, because there had been absence of the whole family from Maybole for more than four years, and according to the Act of Parliament it is contended that a residential settlement would not survive a five years' absence from the parish unless the pauper had lived for one continuous year within it. Now, in September 1885 it was impossible that within five years from Whitsunday 1881 there could be residence for one year. That would be destructive of a claim against the parish of Maybole if we take account of the time passed by the family out of the parish after the husband's death. I think that we must do so, and must join the period between March and September to the previous period.

What the Act means is this. A settlement once acquired by residence is not lost by absence unless that absence be long continued, and the period for which it must continue is specified by the statute, and we have often decided that absence for any period over four years is sufficient, as the pauper could not then reside for one continuous year out of five in the parish. As to the question of the absence of a family after the death of the person who acquired the residential settlement being held to be continuing absence, I think it ought to be allowed in principle. I think that principle was decided in Allan v. Higgins, although these cases always present a great variety of circumtances. In the case of Jackson I did not mean to say anything to the contrary of that view. If there was absence by the whole family for five years, that would destroy the residential settlement although the husband had died in the meantime. I do not think it reasonable to suppose that a new period of five years began on the death of the husband.

Upon the whole matter I am of opinion that the settlement in Maybole was lost by the pauper's absence for the time which the Act says shall be sufficient for that effect, and that the parish liable is that of her birth.

Lord Craighill—I am of the same opinion. The dispute is now between Maybole and Stewarton. Of course if the wife retained the settlement she had at her husband's death, she is chargeable to that parish, but if not, then she is chargeable to the parish of her birth. Her husband had a residential settlement at the time of his death, and it is necessary to observe that a residential settlement is only kept on one condition, viz., that for one year in five the person who has acquired the settlement should reside in the parish. Now, the period necessary had very nearly run out here at the death of the husband, and the question whether the wife was to retain her settlement in Maybole depended upon whether she returned to Maybole shortly after her husband's death or not. I think that as she did not return, the ordinary rule of the statute applies. By the statute a person is held to have lost his residential settlement if during five years he has not resided for one year within the parish. I think that the clause is absolute, and that we ought to give effect to it.

Lord Rutherfurd Clark—I also agree. I think that this case is ruled by Allan v. Higgins.

Lord Justice-Clerk—If this case had had a more important patrimonial interest I might have thought it necessary to take more time to consider my judgment, as my impression is rather in the opposite direction from that expressed by your Lordships. There are very strong opinions

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