Scottish Court of Session Decisions

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Cite as: [1915] SLR 672, [1915] ScotLR 672

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SCOTTISH_SLR_Court_of_Session

Page: 672↓

Court of Session Outer House.

Friday, February 26. 1915.

[ Lord Dewar, Ordinary.

52 SLR 672

Kirkcaldy and Dysart Parish Council

v.

Traquair Parish Council.

Subject_1Poor
Subject_2Settlement
Subject_3Derivative Settlement
Subject_4Woman with Pupil Children the Offspring of a Bigamous Marriage Entered into in Good Faith.
Facts:

A woman entered into a bigamous marriage with a man in the bona fide belief that his first wife was dead. On the man's death she and her pupil children became chargeable.

Held that the putative wife did not
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derive a settlement from her putative husband either for herself or her pupil children, and that the parish of his settlement was not liable for their relief.

Headnote:

The Parish Council of Kirkcaldy and Dysart, pursuers, brought an action against the Parish Council of Traquair, defenders, for declarator that the parish of Traquair was the legal settlement on 5th March 1914 of Jeanie Lumsden or Maguire, of Bernard Maguire, Peter Maguire, and George Maguire, the pupil children of Jeanie Lumsden or Maguire and the late Joseph Maguire, and that the defenders were liable for their relief and for repayment of sums already advanced on their behalf.

The circumstances of the case were narrated in the opinion of the Lord Ordinary, thus—“The facts, upon which both parties are agreed, are briefly as follows:—In December 1902 the pauper woman Jeanie Lumsden gave birth to an illegitimate child at Dysart, where she resided. In December of the following year she went through a form of marriage with Joseph Maguire at Kirkcaldy. Maguire's wife was then alive, but he falsely informed Lumsden that she was dead, and she believed him. Maguire and Lumsden lived together in Dysart, and four children were born to them, three of whom are alive and all are in pupilarity. In May 1903, and again in July 1905, February 1908, and December 1908, Maguire and his dependants, that is Lumsden and her family, became chargeable in Kirkcaldy and Dysart parish. In August 1910 they removed to the parish of Auchterderran, where Maguire died on 18th November 1912. On 25th November 1912 Lumsden applied for and obtained relief for herself and her children. On 28th February 1914 she and her family returned to Dysart. They still reside there and are in receipt of parochial relief. In these circumstances the pursuers—the Parish Council of Kirkcaldy and Dysart—have brought this action against the Parish Council of Traquair (which is the parish of Maguire's birth) concluding for declarator that the defenders are liable in relief for the sums which the pursuers have already paid, or may require to pay, for the support of the pauper woman and her children.”

The defenders pleaded, inter alia—“(3) The said Jeanie Lumsden not being the wife of the said Joseph Maguire did not acquire his settlement of birth, and decree of absolvitor should accordingly be pronounced. (4) The pupil children of the union between Jeanie Lumsden and Joseph Maguire being dependants of their mother (who is the pauper) the parish of her settlement (which is not Traquair) is liable for their relief, and decree of absolvitor should accordingly be pronounced.

The following authorities were referred to in argument—Graham on Poor Law, pp. 172–192; Barbour v. Adamson, May 30, 1853, 1 Macq. 376; Caldwell v. Dempster, July 20, 1883, 10 R. 1263, 20 S.L.R. 845; Rutherglen Parish Council v. New Monkland Parish Council, 1907 S.C. 1053, 44 S.L.R. 757; Rutherqlen Parish Council v. Glasgow Parish Council, May 15, 1902, 4 F. (H.L.) 19, 39 S.L.R. 621; Purves Trustees v. Purves, March 16, 1895, 22 R. 513, Lord Kincairney at p. 517, 32 S.L.R. 379; Petrie v. Ross, June 9, 1896, 4 S.L.T. 63; Edinburgh Parish Council v. Kirkcaldy Parish Council, 1912, 2 S.L.T. 267; Greig v. Adamson, March 2, 1865, 3 Macph. 575; Shotts Parish Council v. Bothwell and Rutherglen Parish Councils, November 24, 1896, 24 R. 169, 34 S.L.R. 136.

Judgment:

Lord Dewar—The question raised in this case is whether the obligation to support a pauper woman and her children—where the woman has entered into a bigamous marriage in the bona fide belief that the wife of the man was dead—falls upon the settlement of the putative husband.

[ After narrating the facts as quoted above]—There is an averment on record that the defenders admitted liability, but there is no plea to the effect that they are bound by their admission, and no argument was presented on that question. The only ground upon which the pursuers maintain that they are entitled to relief is that Lumsden derived through her putative marriage Maguire's settlement.

It is a novel question on which there is no direct authority, and very little which has even an indirect bearing. It appears to be settled that children of a putative marriage are legitimate—Fraser, Parent and Child, p. 27; and Petrie v. Ross, 4 S.L.T. 94. And legitimate pupil children take their settlement from their father. They take it directly through him when he is alive and indirectly through their mother when he is dead. But the peculiarity of this case is that although the children are legitimate, their mother was never their father's wife, and is not now his widow. But she is the surviving parent, and the children, including her illegitimate child, take her settlement whatever it may be. The question is, did she derive one from Maguire? The pursuers say she did, on the ground that although the marriage is null, yet she entered into it in the bona fide belief that there was no impediment, and is therefore entitled to claim all the advantages which a valid marriage confers upon a woman so long as her claims do not impinge upon the rights of the lawful wife. I was not referred to any authority in support of that proposition, but I see no reason why the law should not protect, so far as it can, an innocent woman as it protects her children in such circumstances. But then the woman does not make any claim. It is the Parish Council of Kirkcaldy and Dysart who claim to be relieved from the obligation of alimenting her and her children. She does not appear to have any interest in that claim. At all events she does not make it, and it is not made on her behalf. Then although the law may protect the woman as far as possible, it cannot give her the status of a wife, and that appears to be essential in a question of settlement. The principle upon which the decisions that a wife and legitimate pupil children can have no settlement apart from the husband and father is based is that the family must be kept together. The

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father is the head of the family, and it is assumed that his wife and children will reside with him, and any settlement gained by him is gained not for himself alone but for the whole family— Barbour v. Adamson, H.L., 1 Macq. 376. That principle clearly cannot be applied in a case like this. The law does not assume that this family was kept together by the father. It does not recognise him as the head. It was his duty to reside with his lawful wife, and any settlement he acquired was acquired for her and her family.

It is a narrow question, but on the whole the defenders' argument appears to me to be more in accordance with the decisions than that presented by the pursuers, and I accordingly think they are entitled to be assoilzied from the conclusions of the summons with expenses.

The Lord Ordinary assoilzied the defenders.

Counsel:

Counsel for the Pursuers—Solicitor-General ( Morison, K.C.)— Graham Robertson. Agent— James Ayton, S.S.C.

Counsel for the Defenders— Constable, K.C.— MacRobert. Agents— Scott & Glover, W.S.
1915