Scottish Court of Session Decisions

On 15th July 1909 the Parish Council of the Parish of Leith ( first parties) and the Parish Council of the City Parish of Aberdeen ( second parties) brought a Special Case for the determination of questions regarding the liability to maintain the pupil children of William Mitchell, then a prisoner in the prison at Peterhead.

The facts as stated by the Lord President in his opinion ( infra) were as follows:—“William Mitchell, who was not by birth

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a Scotsman, came to Scotland and acquired a settlement by residence in the parish of Aberdeen, which admittedly he held on 6th December 1903. On that date he went to Leith in search of employment, leaving his wife and family in Aberdeen. On 6th February 1904 he took a house in Leith, to which he brought his wife and family, and there is no doubt that after 6th February 1904 he was in the course of losing his Aberdeen settlement. But on 10th November 1906—that is to say, before the expiry of the three years, even if you count the three years as running from 6th December 1903 and not from the 6th February 1904—he was taken out of his house by being arrested and put in jail, and the eventuality of it was that he never came out of jail again, because he was sentenced to penal servitude for ten years—a sentence which he is still undergoing. His wife was dead by that time, but he left his children entirely unprovided for. On 11th November 1906 these children were taken to the poorhouse, and with the exception of one who has been adopted by some friends in Peterhead, they are all in Leith poorhouse now. The question raised by this case is whether Leith, which has got the children in its poorhouse, is bound to bear the brunt of it, or whether Leith has recourse against Aberdeen.”

It was admitted by the parties (1) that at the date when they were taken into Leith Poorhouse in November 1906 all the children in question had a settlement in the parish of Aberdeen derived from their father; (2) that since that date they had all been continuously in receipt of relief from the first parties with the exception of George Mitchell, on whose account no advances had been made since January 1907; and (3) that so long as the settlement of said children was in the parish of Aberdeen the second parties were liable to repay to the first parties all advances properly made on their behalf.

The first parties maintained that when Mitchell's children were admitted to the poorhouse in November 1906 they became and fell to be regarded as paupers in their own right; that their settlement at that date having admittedly been in the parish of Aberdeen, and they having since been continuously in receipt of relief, said children had never lost their settlement in the parish of Aberdeen. Alternatively the first parties maintained that Mitchell did not cease to reside in Aberdeen in the sense of the statute until 6th February 1904, the date at which he removed his wife and family from Aberdeen and took up house at Leith; that at the date when he was arrested, on 10th November 1906, and at the date when he was sentenced to a term of penal servitude on 22nd January 1907, his settlement was in the parish of Aberdeen; and that subsequent to said 10th November 1906, or at all events subsequent to said 22nd January 1907, and until he was liberated from prison, his settlement could not change. Alternatively, and in the event of its being held that William Mitchell ceased to reside in Aberdeen on 6th December 1903, the first parties maintained that at the date when he was arrested, on 10th November 1906, his settlement was in the parish of Aberdeen, and that subsequent to said date, and until he was liberated from prison his settlement could not change. In the event of its being held that the settlement of the children changed with that of their father, and that Mitchell had lost his settlement in Aberdeen by absence for the statutory period, the first parties maintained that he did not cease to reside in Aberdeen until 6th February 1904, the date at which he took up house with his family in Leith, and that accordingly he did not lose his settlement in Aberdeen till 7th February 1907, until which date the second parties were liable for the support of the children.

The second parties maintained that on 6th December 1906 the said William Mitchell's settlement in the City Parish of Aberdeen was lost on account of his absence from that parish for three years, that thereupon the settlement which the said children had derived from their parent also came to an end, and accordingly that the claim made by the first parties as the relieving parish for repayment of the sums disbursed by them on account of the said children was good against the second parties only in respect of the period from 10th November 1906 to the said 6th day of December 1906, but not for any further period. Alternatively they maintained that the settlement of the said William Mitchell in the City Parish was lost on 6th February 1907, and that the claim of the first parties for reimbursement was good against the second parties only in respect of the period from 10th November 1906 to the said 6th day of February 1907.

The questions of law included the following—“Do the said Alfred, Emily, Mary and James Mitchell, children of the said William Mitchell, still possess a settlement in the City Parish of Aberdeen.”

Argued for first parties—The children were paupers in their own right, and during chargeability their settlement (which admittedly was in Aberdeen) could not change— Beattie v. Adamson, November 23, 1866, 5 Macph. 47, 3 S.L.R. 44; Parish Council of Paisley v. Parish Councils of Row and Glasgow, 1908 S.C. 731, 45 S.L.R. 556.

Argued for second parties—The true debtor in the obligation to aliment these pupil children was their father. He had not become destitute; he was an able bodied man. No doubt a restraint had been put upon his liberty, making it impossible for him to earn his livelihood, but he was not himself a pauper; he was not himself in receipt of parochial relief. His children were properly relieved by the first parties because they were found destitute within the parish, but the receipt of parochial relief by them did not pauperise him. The fact that a man's wife or children had received parochial relief did not prevent him from acquiring a settlement by residence elsewhere, or a fortiori from losing it— Wallace v. Turnbull, March 20,

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1872, 10 Macph. 675, 9 S.L.R. 417; Anderson v. Paterson, June 12, 1878, 5 R. 904, 15 S.L.R. 620; Milne v. Henderson and Smith, December 3, 1879, 7 R. 317, 17 S.L.R. 197; Milne v. Ross, December 11, 1883, 11 R. 273, 21 S.L.R. 207; Hunter v. Henderson, December 22, 1894, 22 R. 331, 32 S.L.R. 169; Brechin Parish Council v. Montrose Parish Council, December 6, 1904, 7 F. 207, 42 S.L.R. 150. That being so, Mitchell had lost his settlement in Aberdeen on 6th December 1906, or in any event on 6th February 1907, with the result that his children had lost their settlement there. Esto that if the children were the paupers their settlement could not change during chargeability— Beattie v. Adamson ( cit. supra)—they were not the paupers. They could not be so, for their father was alive, he had not deserted them, and his whereabouts were known.

At advising—