Scottish Court of Session Decisions

James Wallace, Inspector of Poor of the parish of St Nicholas, Aberdeen, brought an action in the Sheriff Court at Stonehaven against George Ross, Inspector of Poor of the parish of Laurencekirk, for payment of sums expended and to be expended for the maintenance and support of a pauper John Duncan, on the ground that the pauper had no residential settlement, and that Laurencekirk, as the parish in which he was born, was liable for the expense of alimenting and providing for him.

The defender pleaded that the said John Duncan not having been born in the parish of Laurencekirk, he should be assoilzied.

The question in dispute was entirely one of fact, viz., whether or not the pauper had been born in the parish of Laurencekirk?

A proof was allowed, at which the pauper, aged sixty-nine, deponed—“After I grew up I was told by my mother that my father was working at Scotston when I was born. I was born six weeks before Whitsunday. My mother told me that. I am sure my mother told me I was born at Scotston, Laurencekirk. She said it was a stone and lime laigh house I was born in. She often told me the place of my birth. Cross.—I do not know that I was ever told the year I was born. I do not mind much about the conversation I had with my mother as to where I was born. It is thirty-three years since I had the conversation with my mother.

Mrs Robertson, aged seventy, deponed—“I am the only sister of John Duncan. He is twenty-one months younger than me.

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He was born in April. My mother told me about my own birth and my brother's. My mother's name was Jean Miller, and my father's name David Duncan. She told me they were married at Haddo. My mother was then housekeeper for her uncle at Haddo. My father was a ploughman at Haddo when my mother and he were married. My mother was in the familyway when she was married. I was born at West Caldhame, in the parish of Marykirk. I think my mother went there shortly after leaving Haddo. My mother left Caldhame the Martinmas after I was born. She went to Blackiemuir Avenue, Laurencekirk, at Martinmas of that year, and had a house for six months there. My mother went from Blackiemuir Avenue to Scotston. My brother John was born at Scotson. I have only my mother's word for it, but I have always minded what she told me. Cross.—It is more than twenty years since my mother died. I was about nine months old when my father and mother went to Scotston. I do not know how long they were there. My mother never told me the particular house in Scotston in which they lived.”

There was no other evidence in support of Scotston being the place of the pauper's birth.

For the defender, an old man, William Balfour, aged eighty-nine, who knew the pauper's parents and the circumstances connected with his birth and that of his sister (examined on commission), deponed—“I have always understood John was born at Haddo or Scotston. I have sitten here and considered it many times, and I think he ‘boot’ to be born at Haddo, because use there was twenty-two months between them, and the girl was born at Caldhame.”

Other evidence showed that if born at Haddo the pauper was born just outside the boundary line of the parish of Laurencekirk as there defined, and in the parish of Garvock.

The Sheriff-Substitute ( Brown) found that the pursuer had failed to prove that John Duncan, the pauper, was born in the parish of Laurencekirk, and assoilzied the defender.

“ Note.—… Mrs Robertson and the pauper are quite clear that their mother, repeatedly and in different terms, told them that the pauper was born at Scotston, and the pursuer's contention is that he is entitled to prevail because he has the evidence of two witnesses. I am unable to concur in this view, the evidence amounting not to two witnesses to a fact, but only to a statement as to a fact, which is a wholly different thing. Of direct proof as to the birth in Scotston there is therefore on the pursuer's side only the evidence of the pauper's mother, as that is to be gathered from the statement imputed to her by the pauper and his sister. Whether in the circumstances such evidence, if standing by itself, would have availed the pursuer, and what force there is in some Sheriff Court decisions referred to at the hearing in which similar proof was accepted as sufficient evidence of birth, I do not find it necessary to say, because in my opinion there are important adminicles casting serious doubt on the alleged fact which is thus spoken to. [ After examining the evidence]—I therefore come to the conclusion—in the end I must say without hesitation—that the pauper was born in Haddo, and not in Scotston. … The pursuer conceived himself to be in a strong position through the evidence of the pauper and his sister as to the birth in Scotston, and elected to peril his case on that ground. Although very ably and forcibly maintained, I have quite a distinct opinion that it fails.”

The pursuer appealed to the Sheriff ( Guthrie smith), who recalled the Sheriff-Substitute's interlocutor, found that the pursuer had proved that the pauper was possessed of a settlement by birth in the parish of Laurencekirk, and decerned in terms of the conclusions of the action.

“ Note.—… The pauper and his sister say that it was to Scotston David Duncan returned and lived with his wife and child in a cottar-house somewhere near the scene of his employment. It is not denied that Scotston is entirely in the parish of Laurencekirk, but it is suggested by way of defence to the action that the cottar-house in question was not on Scotston but on the farm of Haddo (where Duncan resumed his employment in 1821) on the Garvock side of the line which, running through the farm, separates Garvock from Laurencekirk. In support of this theory an old witness of the name of Balfour is called, and were he a reliable witness I should agree with the Sheriff-Substitute that the locality of the birth had been left so uncertain that the burden of proof had not been discharged, and the relieving parish must remain saddled with the burden.

But Balfour is an old man close on ninety years of age, and his memory does not seem to me to be trustworthy. Indeed, he admits that after sitting thinking over the matter ‘many times’ the only conclusion he could come to was that the pauper ‘boot to be born in either Scotston or Haddo.’ This is not enough to displace the family tradition to which the pauper and his sister speak positively, that after leaving Haddo in 1820 their father David Duncan never returned to it, but went to Scotston, and that it was in a cottar's house on Scotston where the family lived. Their mother always said so, and never mentioned Haddo. … I cannot imagine a man going through life and reaching the allotted three score years and ten completely mistaken on a point which with all men, poor as well as rich, is a matter of affectionate interest—the place where he first saw the light—without discovering the error. This it is that makes family tradition valuable as evidence, for it relates to matters on which people are careful to be accurate, and although it may be overturned by some opposing fact, it is not to be rejected for reasons which never pass beyond conjecture and surmise. I have therefore found the parish of Laurence-kirk liable to relieve St Nicholas of this pauper.”

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The defender appealed to the Court of Session, and argued—The pursuer had failed to prove his case. The proof must be as complete in cases like the present as in any other class of cases—See Lord President in Leman v. Wallace, November 26, 1887, 15 R. 92. There was no case here of “family tradition,” but only the evidence of one person, which could receive no additional force because it was repeated by her two children. That unsupported statement by the mother was insufficient, even if there were no conflicting evidence, but here the evidence of Balfour threw grave doubts upon Scotston being the pauper's birthplace. As to “family tradition,” see Macpherson, &c. v. Reid's Trustees, &c., November 17, 1876, 4 R. 132 (espec. the Lord President's opinion, 138).

Argued for pursuer and respondent—No one knew so well as the mother where her child was born, and being dead, hearsay of her evidence was competent by the law of Scotland. Apparently in King v. Inhabitants of Erith, June 15, 1807, 8 East. 539, the similar evidence of a father given by, hearsay would have been held sufficient if it had been competent, which, being in England, it was not—Taylor, secs. 645–646; Phillipps, i. 201; Greenleaf, i. 126. The understanding of the pauper and of his sister as to his birthplace, derived from their mother, and unshaken all throughout their somewhat long lives, amounted to “family tradition,” and was sufficient evidence in support of the pursuer's claim.

At advising—