Scottish Court of Session Decisions

The pursuer in this case, the inspector of poor of the parish of Tillicoultry, sued the inspector of the parish of Kilmadock, and alternatively of Dunblane, for repayment of certain sums paid by him as alimentary advances on behalf of Elizabeth Scobie, a pupil pauper who had been born at Deanston on 29th March 1867. Her father John Scobie had been born in the parish of Dunblane, but for a number of years (upwards of five) prior to his death, which took place in May 1872, he had resided at Deanston, in the parish of Kilmadock, and had at the time of his death a residential settlement in that parish. He had married in December 1865 the pauper's mother Elizabeth Richardson. Immediately after her husband's death the latter had removed with the pauper to Tillicoultry, and about two years thereafter had married, about April 1874, Robert Mackay, who resided in Tillicoultry. The pauper had continued to reside with her mother until the marriage, and thereafter resided along with her stepfather and her mother in Tillicoultry until her mother's death in August 1878. After her mother's death her stepfather refused to support her, and she being unable to aliment herself became chargeable as a pauper, and claimed and received parochial relief from the parish of Tillicoultry. Statutory notices were sent by the pursuer to each of the defenders on 26th September 1878.

In this state of the facts a question arose as to whether the pupil Elizabeth Scobie by the removal of herself and her mother from the residential settlement which her father held at his death had lost her settlement there. If she had not, Kilmadock was liable. If she had lost it, decree was asked against Dunblane, which was the parish of her father's birth settlement. Kilmadock and Dunblane both pleaded that Tillicoultry was the parish of the pauper's settlement, and therefore liable.

The Sheriff-Substitute ( Grahame) on 14th August 1879 pronounced an interlocutor in which he found in point of law “that at the date of the said John Scobie's death his widow and pupil child had derived through him a residential settlement in Kilmadock parish; that the said child could not, up to the date when she became chargeable as a pauper, as being then in nonage, acquire for herself any new settlement; that the settlement in Tillicoultry which her mother acquired on her second marriage was acquired for herself alone, and did not enure to her child, but that the child continued to follow the settlement of her father in Kilmadock, and that when at her mother's death she became chargeable as a pauper, that parish, as having been the parish of her father's residential settlement when he died, was the parish of her settlement, and as such liable for her maintenance.” And the Sheriff therefore decerned against Kilmadock.

He added the following note:—

“ Note.—In this case questions are raised as to the liability of three separate parishes for the maintenance of Elizabeth Scobie, a pupil pauper—the questions being, Whether the parish of Tillicoultry, where the pauper became chargeable, and where her mother had, after the death of the pupil's father, acquired through a second marriage her second husband's residential settlement, was liable? or secondly, Whether the parish of Kilmadock, as having been the parish of the residential settlement of the pauper's father at the time of his death, or otherwise, as being the parish of the pauper's birth settlement, was liable? or thirdly, Whether in the event of the father's residential settlement at Kilmadock being held to have been lost to his child through non-residence under the 76th section of the Poor-Law Act, his birth settlement at Dunblane did not come into effect, and render that parish liable for the pauper's maintenance? The Sheriff-Substitute thinks that the father's residential settlement at Kilmadock determines the liability of that parish. The view taken by the Sheriff-Substitute is that the residential settlement in Kilmadock of the pupil's father on his death passed to his pupil child; that she as a pupil could not lose it for herself, and that no new settlement having been acquired on her behalf through her mother's second marriage, her father's settlement must be held to be still in force. It is an established principle that no settlement can be lost without the acquisition of a new one, and it is a further principle of the poor-law that no pupil child can acquire a settlement for itself. The head of the family of which it is a member is the pupil's responsible representative in all questions of parochial liability for maintenance; and until the child is forisfamiliated, the settlement of parentage, whether of birth

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or residence, as the case may be, alone is recognised as that of the pupil child, and cannot be lost by non-residence on its part. On the father, and on his death on the mother, of a pupil child the law enforces the obligation of its maintenance; and on the parents’ failure to discharge this obligation, their respective parishes of settlement, whether of birth or residence, have to take up the burden. Thus the father as head of the family is primarily liable for the maintenance of his pupil children, and on his death the parish of his settlement has to discharge this obligation; and until a new settlement has been acquired and new family roof-trees planted, either by the surviving mother as now the head of the family, and therefore capable of acquiring a residential settlement for herself and her children, or by the children themselves becoming forisfamiliated and independent of their parents, the father's parish of settlement is alone liable. No doubt when the father dies leaving a widow, she becomes the head of the family, and during the pupillarity of the children of the marriage, may, should she become a pauper, claim relief on their account as well as her own from any parish in which she has through a second marriage acquired for herself the settlement of her second husband. Pupil children while living in family with their mother are held so far to follow her fortunes, and from the parish of her settlement, acquired in the manner above referred to, she is entitled to obtain relief not only on her own account but on theirs. In all this, however, there does not appear to be any good ground afforded for holding that there has been any destruction of the pupil children's rights originally derived from their father's settlement; and in the event of the mother dying while the children are still in pupillarity, their father's parish of settlement will, in preference to that of their stepfather, be liable for their support. Some of the earlier decisions may seem at first sight to point to the possibility of a surviving mother acquiring either by residence or through her second marriage a new settlement not only for herself but for her pupil children on their own account; but the opinion of the judges, as delivered in the late case of Beattie v. M'Kenna and Wallace, March 8, 1878, 5 R. 737, clearly show that these earlier cases are not to be taken as deciding that the settlement of a pupil child can in any question with the parish of its father's settlement be in any way affected by the newly acquired settlement of its mother through her second marriage. Lord Shand in giving his opinion in Beattie's case said—‘The previous cases seem to come to this, that when the mother has survived the father the pupil children must during her lifetime be charged on her parish, because she is truly the pauper. The pupil still, however, has a settlement derived from his father. Though there may be a temporary suspension of that settlement in following that of the mother if she become a pauper, on the mother's death the child's settlement is that derived from its father. The result is that the principle laid down in the leading case of Barbour ( 1 Macq. 376) is carried out, and there is no separation of the family.’ It is to be kept in view that, in the present question as to the liability of Tillicoultry parish for the maintenance of the pupil child, it is the relation of the child to its father, and not that of the wife to the husband, that is the regulating principle. The wife always follows the settlement of her husband, but the child that of its father; and it is this last relationship which constitutes the family tie by which, according to the principle and intention of our poor-law, the members of the family are kept united. The children which a widow brings to the home of her second husband are not in the proper sense members of his family; and it is contrary to the principle of the poor-law to hold that the acquired relation of a stepfather to pupil children destroys their inheritance in their own father's parish of settlement and makes them members of a stranger's family.

The Sheriff-Substitute has only to add, that if the view now taken as to the obligation falling on Kilmadock in respect of the residential settlement of the pauper's father having been at his death in that parish is correct, it follows that the questions which have been raised as to the liability both of Dunblane parish as the parish of birth settlement of the pauper's father, and of Kilmadock as the parish of the birth settlement of the pauper herself, must be decided in the negative. The conclusion of the whole question is that the residential settlement of the pauper's father passed to her at her father's death, that she acquired no new settlement through her mother's second marriage, and that the original settlement never having been lost, the liability of the parish of Kilmadock for the maintenance of the pauper, as set forth under the present petition, is determined.”

The inspector of Kilmadock appealed to the Court of Session, and argued—While admitting that the only difference between the point in dispute and that decided in the case of Beattie v. Wallace (March 8, 1878, 5 R. 737) was that in the present case the settlement of the father was by residence, and in Beattie's case it was by birth, that distinction took it out of the category of Beattie v. Wallace.

Authorities— Hay v. Carse, Feb. 24, 1860, 22 D. 872; Allan v. Burton and Higgins, Feb. 8, 1868, 6 Macph. 358; Crawford and Petrie v. Beattie, Jan. 25, 1862, 24 D. 357; Kirkwood v. Manson, March 14, 1871, 9 Macph. 693; Greig v. Adamson, March 2, 1863, 3 Macph. 575; St Cuthbert's v. Cramond, Nov. 12, 1873, 1 R. 174.

At advising—