Scottish Court of Session Decisions

The Poor Law (Scotland) Act 1898 (61 and 62 Vict. cap. 21), sec. 1, is quoted supra in rubric.

The Parish Council of Ayr, pursuers, raised an action in the Sheriff Court at Wigtown against the Parish Council of Wigtown, defenders, for payment of £14, 11s. 10d., expended by the pursuers in alimenting a pauper, James Kelly.

The facts were as follows—James Kelly, a native of Wigtown and unmarried, left that place early in 1903 in search of work and took up his abode in Ayr. During the following three years, though his residence was mostly in Ayr, he took work elsewhere when he could get it. In particular, he was employed on a jobin Kilmarnock for several months in 1905, and he hired himself out for harvest work during 1904, 1905, and 1906. Kelly returned to Ayr in September 1906, the harvest work being finished, and shortly after his return he found employment as a coal-heaver with Mr Wm. Allan, coal merchant, Ayr. The employment lasted during the winter and spring, but failed him during the summer months, when the coal trade was slack. Kelly therefore left Ayr in July 1907, went into training with the Militia for three or four weeks in Dumfriesshire, and thereafter worked at the harvest in Kirkcud bright shire for six or seven weeks. He returned to Ayr early in October, and continued in Mr Allan's employment during the following winter and spring. In the summer of 1908 Kelly again joined the Militia for three weeks in Dumfriesshire, and thereafter found work in Kirkcud bright shire, first in thinning turnips and latterly at the harvest. About the beginning of October, after an absence from Ayr of over three months, he resumed his employment with Mr Allan. In the summer of 1909 Kelly went to Dumfries for the Militia training, but having been discharged as medically unfit, he returned to Ayr after an absence of two days, and continued to work in Mr Allan's employment until 27th June 1910, when owing to illness he applied for and received parochial relief from the parish of Ayr.

During the period from October 1908 to 27th June 1910 Kelly was not absent from Ayr for more than two or three days. After September 1906 when in Ayr he resided mostly in a model lodging-house called the “Trades Hotel.” When he left Ayr each summer he took his whole possessions with him, and he had no engagement for work on his return. His evidence was to the effect that he returned to Ayr each autumn because he knew where he had a job to go to, that if during his absence from Ayr he had got a job he would have taken it, that it all depended on the pay, and that he returned to Ayr because he could make more money in Ayr.

On 19th December 1911 the Sheriff-Substitute ( Watson) found that Kelly had acquired a residential settlement in the parish of Ayr, which was subsisting at 27th June 1910, when he became chargeable, and therefore found that the defenders were not bound to relieve the pursuers of their disbursements on Kelly's behalf.

The defenders appealed to the Sheriff

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( Fleming), who on 24th February 1912 recalled his Substitute's interlocutor, and found that Kelly had not acquired a residential settlement in the parish of Ayr, and therefore found that the defenders were bound to relieve the pursuers of their disbursements on his behalf.

The defenders appealed, and argued—The present case was ruled by the case of Mackenzie v. Cameron, December 10, 1858, 21 D. 93. The defenders did not invoke the doctrine of constructive residence. The question was whether the pauper's absences from the pursuers' parish during the currency of the three years prior to 27th June 1910 were such as to constitute a breach in the continuity of his residence there. Every absence would not have this result. It was a question of circumstances and a question of degree. The Court had to decide what for a man of the pauper's mode of life was a reasonable degree of absence, saving the continuity of residence. Here it could be said that during the whole three years the pauper was substantially working in the parish of Ayr. For the last twenty-one months of that period he was not out of Ayr at all, so that the continuity of his residence was more marked towards the end of the qualifying period, which circumstance was regarded as important in Mackenzie v. Cameron, supra. Reference was also made to Beattie v. Smith & Patterson, October 25, 1876, 4 R. 19, 14 S.L.R. 22.

Counsel for the respondents was not called on.