Scottish Court of Session Decisions

The Lord Justice-Clerk—Cases of settlement are always diffcult, as they depend on arbitrary rules, and the ecclesiastical divisions of counties into parishes. The question is, Whether the parish of Lumphanan, as the parish of residence, or the parish of Kincardine O'Neil, as the parish of birth, is liable for the support of the pauper? The real principle upon which the law of settlement is founded is, that the parish which has benefited by the pauper's industry should bear the burden of his maintenance when he can no longer work for his own support. Recurrence to the birth settlement is an exception to this rule. But the residence necessary for the acquisition of a settlement must be of a continuous character, and if there have been interruptions in the residence, these may prevent the pauper from acquiring a settlement, and he may have to fall back on the parish of his birth. But we must take into account the nature and animus of the absence. If a man goes away for a short time, leaving his wife and family to reside in the parish, you cannot say that he has ceased to reside there. There is nothing set out in this case to show that the pauper had interrupted his industrial settlement in Lumphanan. He maintained himself, his wife, and family there by his industry for five years, and resided there himself, with the exception of certain periods of absence, amounting in all to a little more than a year, when he worked in other parishes. I have no difficulty in holding that these absences did not interrupt, when they were, as was generally the case, merely because the man's work lay in an adjoining parish, while his real home was still in Lumphanan. Neither do I think that his absence in the parish of Glenmuick, upon a temporary engagement there, is sufficient. He was only there for two months and a-half. He got employment as a farm servant, which was one of his trades. There was nothing to show that he had changed his residence or abandoned the parish of Lumphanan. I think it must be held that the pauper resided for five years in the parish of Lumphanan, in the sense of the 76th Section of the Act.

Lord Benholme—Had this case come before us without our having the benefit of previous decisions, my opinion would have been that there had here been an interruption of the residence in the parish of Lumphanan. But the judgments which have been pronounced compel me to come to a different conclusion. In the case of the sailor ( Greig v. Miles), it was held that a man need hardly reside at all in the parish if he has a wife and family there. It is true he could not be acquiring a settlement elsewhere because he was at sea. But in the case of the fisherman ( Moncrieff v. Ross), even that element was wanting, because he resided in a different parish in Scotland, and might have acquired a settlement there if he had remained long enough, so that it could not be said that he was not in a position to acquire a residential settlement elsewhere. With that case before us, I cannot help giving effect to the principle established. It is not contended in the present case that any other settlement was acquired, and I can hardly think that when the pauper was at Dorsinsilly he was in a position to acquire a settlement in Glenmuick parish. He had no house there, and his wife and family resided elsewhere. The element of intention is important, and is clearly brought out by the case of Beattie v. Kirkwood, where the Court came to an opposite decision. In that case the pauper, a young man, who lived with his father, had neither house nor wife and family. The father with whom he resided broke up his establishment, and so he, the son, had no place to which he could return, and his connection with the parish was entirely severed. On the whole, there is enough in the decisions to enable us to hold that the settlement was not interrupted.

Lord Cowan and Lord Neaves concurred.