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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hastings v. M'Callum and Others [1866] ScotLR 1_123_2 (27 January 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0123_2.html Cite as: [1866] ScotLR 1_123_2, [1866] SLR 1_123_2 |
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Page: 123↓
Circumstances in which held (alt. Lord Ormidale) that a residential settlement had been acquired.
Page: 124↓
This action was raised by the parish of Kirkconnel against the parishes of Penninghame and Glencairn for payment of parochial relief furnished by it to Janet Geddes or Candlish, who became, in consequence of insanity, a proper object of parochial relief in May 1861. Her husband, James Candlish, a labourer, was born in Penninghame, but that parish alleged that he had acquired a settlement by residence in the parish of Glencairn for five years continuously from 1854 to 1859. It appeared that Candlish had gone to Glencairn on 18th July 1854, leaving his wife and family in another parish. After living in lodgings in Glencairn for some weeks, he left it on 7th or 8th September 1854 for harvest work in another parish. From July to September he was working in Glencairn as a surfaceman on the roads. He returned to Glencairn in October 1854, and his wife joined him there on 7th November 1854. On 3d May 1859 he left Glencairn, and went to work as a railway labourer in the parish of Kirkmabreck. His wife and family remained in Glencairn until 4th November 1859, when they left that parish altogether. Betwixt May and November 1859, the husband paid occasional visits to his wife and family in Glencairn.
The Lord Ordinary (Ormidale) held that the birth parish was liable. He thought that the residence in Glencairn could not be held to commence till October 1854, and must be held to have terminated in May 1859, when Candlish went to Kirkmabreck. There was not, therefore, in his opinion, a residence in Glencairn for the time necessary to acquire a settlement there. The parish of Penninghame reclaimed; and to-day the Court altered the decision of the Lord Ordinary.
The Lord President, who delivered the judgment of the Court, said—The question is whether Penninghame or Glencairn is liable for the aliment of this pauper. It appears that the husband is a native of Penninghame. On 18th July 1854, he went to Glencairn, remained there, living in lodgings, till the 7th September, when he left for harvest work in a neighbouring parish, and was absent for five weeks or so. He then returned, resumed his work, and went into the same lodgings. He was there joined by his wife and family, and with them went into a house which had been taken before he went to harvest work in September, thus showing clearly an intention to return. He remained in Glencairn until November 1859, when he, with his wife and family, left the parish finally. The law applicable to such cases is correctly stated by the Lord Ordinary. He states that constructive residence is not enough to establish a settlement; and, further, that every casual interruption is not sufficient to prevent the acquisition of a settlement; and that the question here is a sort of jury question whether the interruptions in this case were sufficient to prevent the acquisition of a settlement. There was more than five years' residence in Glencairn. But difficulties have been raised as to the character of the residence in Glencairn at the beginning and the end of the period. At first when he came to Glencairn he left his wife behind him. I don't think that the personal presence of an individual in a particular place is the sole test in such cases. We must look to the circumstances connected with the residence, and not only to the personal presence of the individual. The very fact that casual absence does not interrupt the settlement is a proof that individual presence is not always necessary. An important fact is the permanent character of his residence, and I think it important that he became a householder in the parish of Glencairn. The important event founded on here as dislocating his residence in Glencairn is his absence as a railway worker, in the parish of Kirkmabreck, for a period of several months at the end of the five years. But I do not think this is sufficient. He did not go away to hire himself for a term, he only took work from day to day. Upon the whole, I think that this absence was a mere incident in the life of a day-labourer, and that there is not enough here to dislocate the residence at Glencairn.
The parish of Glencairn was therefore held liable.
Counsel for Penninghame— Mr Patton and Mr N. C. Campbell. Agents— Messrs Patrick, M'Ewen, & Carment, W.S.
Counsel for Glencairn— Mr Fraser and Mr Johnstone. Agent— Mr John Galletly, S. S. C.
