Scottish Court of Session Decisions

In November 1887 George Greig, Inspector of Poor of the City Parish of Edinburgh, raised an action in the Sheriff Court of the Lothians and Peebles at Edinburgh against Andrew Craig Simpson, Inspector of Poor of the parish of South Leith, concluding for payment of £20, 11s. 4d. of outlay by him between 10th September 1886 and 30th September 1887, for the aliment of Abigail Simpson Morham, widow of John Wilson Morham, tailor's cutter, who died on 29th June 1886, and for the aliment and support of their

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children, and for relief of all future payments on their behalf.

The following facts were established in the proof:—

The pauper was married to the deceased John Wilson Morham on 27th August 1875. At Whitsunday 1879 the parties went to reside at 44 Albert Street, Leith Walk, in the parish of South Leith, and they resided there until Whitsunday 1881. Morham and his wife and family thereafter lived for more than two years at No. 3 North Elliot Street, also in the said parish of South Leith.

On 9th April 1884 Morham went to Cupar in pursuit of his business as a tailor's cutter; he lived in lodgings there until 26th May 1884, at which date he removed his wife and children from North Elliot Street, South Leith, where he he had left them, to a house which he had taken for them in Cupar. Between 9th April and 26th May, Morham had been in the habit of returning to Leith on the Saturdays and spending the Sundays with his wife and family. In November 1884 Morham and his wife and family finally left Cupar. He died on 26th June 1886. The pauper became chargeable in the pursuer's parish on 10th September 1886.

The pursuer contended that the pauper had a settlement in the parish of South Leith, in respect that her husband occupied and resided with his family in various houses in the parish between Whitsunday 1879 and Whitsunday 1884; that Morham had thus acquired an industrial residential settlement in the said parish, which at his death was transmitted to his wife and family, whose settlement was and still continued to be in the parish of South Leith.

The defender contended that previous to the date at which Morham removed to Cupar (9th April 1884) he had not resided for the period of five years continuously in the parish of South Leith, and therefore that he had not acquired a residential settlement in said parish.

On 4th February 1888 the Sheriff-Substitute ( Rutherfurd), after findings in fact to the effect already stated, found that a residential settlement had been acquired by the deceased in the parish of South Leith, and decerned for the amount sued for.

Note.—The Sheriff-Substitute had the benefit of an ingenious argument on the part of the defender in this case, but he does not think it necessary to enter into a discussion of all the authorities that were cited. The doctrine of constructive residence in the acquisition of a settlement is now settled by a series of decisions, and as Lord Shand observed in the case of Wallace v. Beattie, 1881, 8 R. 345, ‘the real test in questions of this kind is, where is the person's home?’ In the present instance the Sheriff-Substitute thinks that it is not doubtful that the home of the pauper's husband, for the period of five years from the 26th of May 1879 to the 26th of May 1884, was in the parish of South Leith. It is true that for about six weeks prior to the term of Whitsunday 1884 he himself was absent in Cupar, where he had got work. But his home still continued to be in South Leith where his wife and family still resided in the house which he had taken up to the Whitsunday term, and he joined them there as often as he could from a Saturday to a Monday. That he considered his home to be in South Leith is evident from his letter to his wife, dated Sunday 18th May, in which he says, ‘I am glad to think that I will be home beside you next Sunday, and then the Sunday after that I will have you all over here and settled.”

The defender appealed to the Court of Session, and argued that the facts as set forth by the pursuer showed that the pauper lived for exactly five years in the parish of South Leith, and that being so, the question came to be, did her husband by leaving South Leith for Cupar within the five years break his own settlement and that of his wife and family, or did the fact that his wife and family continued to reside in the house they had occupied in South Leith, continue his residence in spite of his absence in Cupar? The point was decided in 1851 in the case of Hodgert v. Petrie, 1 Poor Law Mag. 350, and in Hastings v. Semple, 1866, 8 Poor Law Mag. 331, and 1 S.L.R. 123. The principles there laid down had ruled the practice since, and it was most undesirable that any alteration in that practice should now be made. The rule was, that when the head of the house removed his residence, then the severance from the parish residence was complete; and it should not be held to be postponed until the last member of the family left, or the last piece of furniture was removed. In the present case the position of Morham was just as if he had asked a neighbour to give his family shelter until the home he had taken for them was ready. When a husband changed from one parish into another, even if his family might not immediately come with him, the time of his residence in the parish was computed from the date of his first arrival in it. So looked at, the pauper's husband had not a five years' continuous residence in South Leith.— Hamilton v. Kirkwood, November 13, 1863, 2 Macph. 107; Hewat v. Hunter, July 6, 1866, 4 Macph. 1033; Allan v. Shaw, February 24, 1875, 2 R. 463; Wallace v. Beattie, January 6, 1881, 8 R. 345; Deas v. Nixon, June 17, 1884, 11 R. 945.

Argued for the respondent—So far as the intention of the pauper's husband could settle such a question, it was clear that he regarded South Leith as his residence until he finally removed his family and furniture on 26th May 1884 to Cupar, for he referred to it in his letter to his wife as “home.” Besides, he was merely a lodger in Cupar; if he had obtained a better place in Edinburgh or Leith than he had got in Cupar he would never have removed his family to Cupar at all. There was no evidence in the case that when he went to Cupar in the prosecution of his business he went there animo remanendi. At the time he went to Cupar his taking a house and bringing his family to join him was a future event. Supposing that instead of settling in Cupar he had moved about as a journeyman tailor, could it have been urged that he had lost his Leith residence? Being a mere lodger, his position was just as if he had moved from place to place. His residential settlement in South Leith was not interrupted until he removed his family to Cupar on 26th May 1884— Greig v. Miles, July 19, 1867, 5 Macph. 1132; Moncrieff v. Ross, January 5, 1869, 7 Macph. 331; Cruickshank v. Greig, January

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10, 1877, 4 R. 267; Harvey v. Rodger & Morison, December 21, 1878, 6 R. 446.

At advising—