Scottish Court of Session Decisions

Margaret Forbes Tulloch was born in the parish of Kinloss, in the shire of Elgin, on 29th November 1873. Her father was Alexander Tulloch, journeyman carpenter, residing in the parish of New Spynie, in the shire of Elgin. She was born in the parish of Elgin.

From the time of her birth until 13th May 1892 Margaret Forbes Tulloch resided continuously in her father's house. On 7th January 1889 she was engaged as a monitress in Bishopmill Public School under the School Board of the burgh of Elgin, and served in that capacity until 1st November 1890. For this service she received the sum of £11, 10s.

On 1st November 1890 an agreement was entered into between the School Board and Alexander Tulloch, “hereinafter called the surety, the father of Maggie Forbes Tulloch, hereinafter called the pupil-teacher, and the said pupil-teacher,” whereby it was provided that she should serve the said School Board as a pupil-teacher.

In pursuance of this agreement she entered upon the duties of a pupil-teacher at the school, and continued to discharge these duties until 6th November 1891, on which date she was obliged to resign her position of pupil-teacher on account of ill-health. During this term of service as pupil-teacher she received as salary the sum of £10.

On 13th May 1892 she became insane, and as a pauper lunatic was placed in the Elgin District Lunatic Asylum by the Parochial Board of the parish of New Spynie, upon which parish she became immediately chargeable.

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Neither Alexander Tulloch nor Margaret Forbes Tulloch had any residential settlement on 13th May 1892. The former then earned the usual journeyman carpenter's wages customary in the district, which are 6d. per hour—the full usual working time being 51 hours per week in summer and about 45 hours per week in winter. His family consisted of his wife and five children, the pauper being the third eldest. The two eldest supported themselves, but the two youngest still lived with their father, and were dependent on him.

In these circumstances a question having arisen between the parochial boards of the parishes of Elgin and Kinloss whether Elgin, as the parish of the pauper's father's settlement, or Kinloss, as the parish of the pauper's birth, was liable for the maintenance of the pauper, a special case was presented to the Court for its decision. It was admitted that one or other of these parishes was liable for her maintenance, and that the parish of New Spynie was not liable.

James Elder, Inspector of Poor for the parish of Elgin, as representing the Parochial Board of that parish, was the first party to the case. A. K. Leitch, Inspector of Poor for the parish of Kinloss, and as representing the Parochial Board of that parish, was the second party.

The question of law was, “Does the burden of supporting the pauper fall upon the parish of Elgin or upon the parish of Kinloss?”

Argued for the first party—The pauper was forisfamiliated, and therefore was chargeable on the parish of her birth. She was in a higher station of life than her father, she being a school teacher and he a journeyman carpenter. She was also earning a considerable wage, amounting to about a sixth of what her father was earning. She therefore maintained herself although lodging in her father's house, and the case was therefore distinguished from Lees v. Kemp, October 17, 1891, 19 R. 6, and Mackay v. Munro, January 21, 1892, 19 R. 396, and Fraser v. Robertson, June 5, 1867, 5 Macph. 819. That she was a minor did not prove conclusively that she was not forisfamiliated, because a boy in minority and not earning sufficient to support himself had been held to be forisfamiliated in the case of Heritors of Cockburnspath, June 9, 1809, F.C. A child might also be forisfamiliated without leaving her father's home— Dempster v. M'Whannel, November 26, 1879, 7 R. 276 (opinion of Lord Shand, 280).

Counsel for the second party was not called on.

At advising—