Scottish Court of Session Decisions

An action was raised by the Parish Council of the Parish of Kilmarnock against the Parish Council of the Parish of Leith for payment of the sum of £14, 9s., being the amount expended by the pursuers on behalf of a pauper named Mrs Margaret Miller and of her husband James Miller from the 27th May 1890 to the 2nd July 1897. In consequence of her husband's illness Mrs Miller became chargeable in May 1896, and received aliment from the pursuers till July of that year. She again became chargeable in November 1896, and

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along with her husband, who became chargeable in December, was relieved until July 1897.

The pursuers alleged that James Miller was born at Restalrig, in the parish of Leith, and that he had never acquired a residential settlement.

The defenders maintained that he had acquired a residential settlement in the parish of Kilmarnock, and that accordingly he was chargeable to that parish.

The decision of the case came to turn entirely upon the question whether the acquisition by Miller of a residential settlement in Kilmarnock was interrupted by the period of eighteen months from Whitsunday 1891 to Martinmas 1892, during which his wife and family resided at Ayr in the circumstances stated by the Lord Ordinary.

The Lord Ordinary (M'Laren) on 1st March 1898 pronounced the following interlocutor:—“Finds that James Miller did not acquire a settlement in the parish of Kilmarnock, and that his birth settlement is in the parish of Leith: Therefore decerns against the defenders in terms of the conclusions of the summons,” &c.

Opinion.—“The question is whether the pauper James Miller is chargeable on the rates of the parish of Leith, his birth settlement, or whether he is chargeable on the parish of Kilmarnock by reason of industrial residence there for the prescribed period of live years.

“There is no dispute as to the facts of the case. Miller, who was a witness in the cause, was for some time in the army, but was discharged in 1881 at Ayr, which I understand was the depot of the regiment in which he was serving. Thereafter he was employed as a miner, working successively at Kilmarnock and at Kinghorn, in the county of Fife, and again at Kilmarnock. But as regards the present question, the only facts necessary to be considered are those which relate to the period from 11th October 1888, when Miller obtained employment at Kilmarnock, to 21st May 1896, when Miller's wife and children were relieved by Kilmarnock parish, being admittedly proper objects of parochial relief. If Miller had resided in Kilmarnock during the whole of this period of seven and a half years, or had resided there for five years continuously, he would be chargeable on Kilmarnock parish. But, first, lie did not have a residence at Kilmarnock until November 1888, because during the few weeks of his employment preceding the Martinmas term his wife and family lived at Ayr. This point is of no materiality in the case, and I only notice it because it is a fact in the man's history. But in May 1891 Miller had to leave his house at Kilmarnock because his rent was in arrear, and for this reason he was unable to get another house in Kilmarnock. Miller's wife then went to Ayr, where she lived with the children from Whitsunday 1891 to Martinmas 1892. During this time Miller visited his wife and children every Saturday, returning to his work on Sunday night. From Martinmas 1892 until parochial relief was given, Miller resided with his family at Kilmarnock. If we exclude the period of eighteen months during which the wife and children resided at Ayr, while Miller himself was working at Kilmarnock, Miller did not acquire an industrial settlement, because his residence at Kilmarnock would then be reduced to two discontinuous periods, the first of two and a half years, the second of less than four years. But for Leith it is argued that the period from Whitsunday 1891 to Martinmas 1892 ought to included, because Miller was physically resident in Kilmarnock during six days of every week of that period.

“ Now, unless we are to throw over the doctrine or fiction of constructive residence, I am unable to admit that Miller's bodily presence at Kilmarnock contituted a residence for the time when he was maintaining his wife and family at Ayr. The principle of constructive residence, first applied to the cases of sailors and fishermen, who are necessarily absent from their homes for a considerable part of every year, was afterwards extended to the case of a shepherd or farm-servant whose home is at such a distance from his place of work that he can only make weekly or periodical visits to it— Greig v. Miles, 5 Macph. 1132; Moncreiff v. Ross, 7 Macph. 331; Cruick-shank v. Greig, 4 R. 267; Harvey v. Rodger, ( 6 R. 466; Beattie v. Stark, 6 R. 957. Miller's case is of this description. If we suppose that instead of bringing his family back to Kilmarnock at Martinmas 1892, Miller had continued his way of life for three and a half years longer, working at Kilmarnock for six days in the week and visiting his family in Ayr at the week's end, then on the authorities, he would have acquired a residential or industrial settlement in Ayr. But there can only be one residential settlement for the purposes of poor-law administration, and if during the disputed period Miller was legally or constructively resident at Ayr, that fact excludes the supposition of a residence at Kilmarnock during the same period. While the period of residence at Ayr was not nearly sufficient to found a settlement in Ayr, yet if there was residence there within the meaning that has been put on the 76th section, it follows that the residence in Kilmarnock was interrupted.

“ I do not think that it would serve any useful purpose to review the authorities as to constructive residence. It is open to counsel to argue that in some particular case the principle has been unduly extended or wrongly applied. Speaking for myself, I should not feel bound to decide for constructive residence merely because the facts of the particular case were very similar to the facts of a decided case, because the decision of a question of fact does not necessarily or usually constitute a precedent. But the principle of constructive residence has been admitted as a qualification of the 76th section of the Poor Law Amendment Act, and, as was to be expected, the decisions make no distinction in this question between the cases of acquiring and losing a settlement. It must also be said that the principle of constructive

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residence has been liberally applied Now, there is nothing peculiar in the character of the double residence in the present case. It is just the case of a labouring man whose employment is in one parish while his home or family residence is in another and not very distant parish. It may be said that it was not from choice, but from the force of circumstances, that Miller placed his family at Ayr while he was working at Kilmarnock. But as much might be said in most of the cases where constructive residence has been recognised. It does not seem to be material (in the sense of raising a distinction) whether, as in the case of the farm-servant, the wife and children are left in a different parish because there are no cottages on the farm, or whether, as in the present case, there are houses to be had but the man is in bad credit and unable to procure one. The language of the 76th section does not suggest that choice has anything to do with the acquisition of a settlement, nor has this element been at all considered in the decisions so far as I can discover.

“Again, I do not think that Leith can take any benefit from the case of Simpson, 16 R. 18. In that case the person whose settlement was in question left the parish, where he was in the course of acquiring an industrial settlement, when a few weeks were wanting to complete the statutory period of five years. The residence was continued by his wife, because a house in the new parish of residence could not be immediately procured. But this residence on the part of the wife was held to be unavailing, because the husband had no intention of returning, and did not, in fact, return; and therefore the wife's residence in such circumstances was not equivalent to the residence of the husband. The case is of the nature of an exception or limitation to the conception of constructive residence, restoring the statutory rule in its literal sense. But, as already said, I do not find anything exceptional in the facts of the present case; they appear to me to fit the category of constructive residence as explained by the decisions. For these reasons I am of opinion that the pauper had only a birth settlement, and that the parish authority of Leith is liable to relieve Kilmarnock of the cost of maintaining the pauper and his family, in terms of the summons.”

The defenders reclaimed, and argued—For the whole period required by the statute Miller had been actually and personally resident in Kilmarnock. The Lord Ordinary had attached too much importance to the fact of the residence of his wife and family, and had overlooked the question as to his intention whether he ever intended to leave Kilmarnock, which it was clearly proved by his after residence there that he never did. The doctrine of “constructive residence” had never been carried to the length to which the Lord Ordinary had carried it. It implied that there must have been a pre-existing residence by the pauper himself, and if there were such it might be eked out when he was absent by the residence of his wife and family for the purpose of eliding interruption. But it could not be maintained that residence could be established in a parish by leaving the pauper's wife and family there until he actually came in person. Accordingly, in all the cases cited by the Lord Ordinary there were these elements existing—personal residence by the pauper in a parish to begin with, followed by his absence from it, and the leaving there of his wife and family. This view was confirmed by the fact that as a rule the plea of “constructive residence” was only set up by the parish which was trying to make out that a settlement had been acquired, not as here by the parish negativing that contention. See cases cited by the Lord Ordinary, and Hewat v. Hunter, July 6, 1866, 4 Macph. 1033; Wallace v. Beattie & Highett, January 6, 1881, 8 R. 345; Greig v. Simpson October 25, 1888, 16 R. 18.

Argued for respondents—The case fell under the well-established rule laid down in the authorities quoted by the Lord Ordinary, viz., that the residence of a married man was for the purpose of settlement at the place where he had established a home for his family. That rule rested on the principle that the parish which benefited by the pauper's earnings should become liable for his support. The mere fact that he was earning his wages in Kilmarnock could not defeat the fact that his home residence was in Ayr. The facts of the present case were precisely those to which effect had been given in establishing this rule.