Scottish Court of Session Decisions

The Poor Law Amendment (Scotland) Act 1845, sec. 76, provides—“And be it enacted that from and after the passing of this Act no person shall be held to have acquired a settlement in any parish or combination by residence therein, unless such person shall have resided for five years continuously in such parish or combination.” …

This was an action raised by John Welsh, Inspector of Poor for the parish of Kelton, against John Lowden, Inspector of Poor for the parish of Urr, in the Sheriff Court at Kirkcudbright, for decree ordaining the defender to pay to the pursuer the amount expended by the latter on the maintenance of an insane pauper Mary Herries, who had been born in the parish of Urr, and to free and relieve the pursuer of the future expense of her maintenance.

In the Sheriff Court the parties lodged a joint-minute, by which for the purposes of the action it was admitted—“(1) That Mary Herries came to the parish of Kelton as a servant to Mr D. J. Hyslop, draper, Castle-Douglas, in August 1886. She remained in Mr Hyslop's service until Whitsunday 1888. At that term she went to Threave House, also in Kelton, as a servant to Mr Gordon, the proprietor of Threave estate. She remained in Mr Gordon's service until Whitsunday 1893. During the period of her service with Mr Gordon she was at Threave aforesaid from Whitsunday 1888 to the last week in May 1890. She then went to Rockcliff, in the parish of Col-vend on the Solway, with Mrs Gordon and a portion of the family. She remained at Rockcliff aforesaid till 20th November 1890, when she returned with the family to Threave. She remained a week at Threave. She then went with a portion of the family to Ryde, in the Isle of Wight, where she remained until 20th or 21st May 1891, when she returned to Threave. She remained at Threave till the first week in June, when she again accompanied a portion of the family to Rockcliff, remaining there till the last week in November 1891. She then returned to Threave, and remained there till Whitsunday 1893. She then left Mr Gordon's service and went as a servant to Carlingwark, also in Kelton, where she remained a few weeks. Her mind having begun to give way, she left Carlingwark and went to live with her sister in Castle—Douglas, and remained with her till her removal on 3rd November 1893 to Dumfries Asylum. (2) During her service with Mr Gordon Mary Herries was upon half-yearly engagements. (3) Mr Gordon, besides owning Threave, was proprietor of a furnished house at Rockcliff aforesaid, and also at Ryde during the period Mary Herries was in his service. (4) When Mary Herries went to Rockcliff and Ryde she took with her her box and clothing, which was all she possessed. She left nothing at Threave.”

On 21st May 1894 the Sheriff-Substitute ( Lyell) pronounced this interlocutor — “Finds in fact (1) that Mary Herries, the pauper, was born in the parish of Urr; (2) that she has not resided continuously for five years in the parish of Kelton : Finds in law (1) that she has not acquired a settlement by residence in the parish of Kelton in terms of the 76th section of the Poor Law Act 1845 (8 and 9 Vict. c. 83); (2) that the parish of Urr is liable for her relief as a pauper: Therefore decerns against the defender in terms of the conclusions of the petition,” &c.

Upon appeal the Sheriff ( Vary Campbell) recalled this interlocutor upon 25th June 1894, and found “that the pauper Mary Herries had, at the time when she became chargeable to the pursuer's parish of Kelton, a settlement by residence in that parish," and therefore assoilzied the defender.

“ Note. — I take all the facts into consideration as these are presented for discussion by the parties in the admissions on record and their joint-minute of admissions. The pauper Mary Herries, though her age is not given, was admittedly forisfamiliated, and capable of acquiring a settlement for herself in the period from August 1886 to November 1893, during which she was connected with Kelton parish. From August 1886 to May 1890 there is no doubt or difficulty as to her continuous residence in that parish, and the same can be said as to the period from November 1891 till she became chargeable to Kelton as a lunatic pauper in November 1893. The difficulty arises as to her absence from Kelton on three occasions between May 1890 and November 1891. If these absences were merely temporary incidents of her service and residence in Kelton parish, then I am bound on the authorities to disregard them. If, on the other hand, she had on any one or all of these absences entirely severed her connection with Kelton parish, and had entered upon a new and perfectly distinct residence in Colvend parish or the Isle of Wight, then I am bound to hold the residence in Kelton parish as broken, and the settlement by residence there not acquired. I do not forget that it is a matter of little or no importance to the woman's welfare whether or

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not Urr, as her parish of birth, or Kelton, as her parish of residence, shall be liable for her support. Nor do I forget that in such cases as in that of the sailor, the fisherman, or the commercial traveller, there is usually the element of a man leaving house and family behind him, as plainly marking out his home and headquarters while he may happen to be absent on his work. This unmarried woman's father was dead, and her mother was in a lunatic asylum, and she had therefore no home apart from her master's house. But I think that I am entitled to take into account the nature of her service and employment during the whole period of her admitted engagement with Mr Gordon of Threave in Kelton parish, from Whitsunday 1888 to Whitsunday 1893, in order to judge of the nature and character of her three absences of somewhat less than six months each between Whitsunday 1890 and November 1891. I do not think that it is a fair way to look at the matter to consider, as I am asked to do by Kelton, whether, on the arrival of the complete period of five years from August 1886, the woman could be said to be then five years continuously resident in Kelton, when in fact she was then in Colvend parish. If the question had arisen then, I should still have had to consider whether her absence was separative or incidental, and I am entitled, as I think, to take into account the subsequent return and residence at Threave as indicative of the true nature of her absence. It appears to me, on a review of the whole facts, that this woman was one of the Threave house servants sent temporarily with some of her master's family twice during the summer months to his house in Colvend parish on the Solway Firth, and once during the winter months to his house at Ryde in the Isle of Wight. On each occasion she started from Threave house with her personal belongings and returned thither, and she finally remained there from November 1891 to Whitsunday 1893 without break, actual or constructive. I see no reason to doubt that a domestic servant, accompanying her master or mistress temporarily to seaside quarters, does not thereby break the continuity of her residence, for the purpose of the law of settlement, in his ordinary or principal house. Nor is there enough to give a separative character to such residence in the fact, that her employer takes or sends her with members of his family to furnished houses not hired by him for the season, but which were his own property. Nor should I think it of any importance in this question, that, though her employment lasted in fact during five years, it consisted of a series of half-yearly engagements, at three of which she was told that she must go, and she consented to go away, temporarily from her master's ordinary dwelling-house. Her permanent residence and her permanent employment were, as I find on the facts on evidence, at Threave House, and her absences were merely incidental and temporary. The circumstance, that in the course of her five years' service at Threave House her temporary absences with some of the family at seaside or winter quarters amounted altogether to nearly, but not quite, eighteen months, and were not spread over the whole period of service, but followed in succession from May 1890 to November 1891, does not move me from my conclusion on the whole facts that her true residence was at Threave House, in the parish of Kelton. Among all the well-known authorities the nearest case to this is probably Dempster v. M'Whannel & Deas, 1879, 7 R. 276.”

The pursuer appealed to the Court of Session, and argued—It was admitted that a domestic servant living in her master's house for the statutory period of five years could acquire a settlement in the parish in which her master's house was situated. In this case, however, the continuous residence necessary was broken by the three different periods of absence specified in the joint-minute of admissions, and a servant could not acquire a residence by constructive residence. All the cases in which constructive residence had been held as coming within the meaning of continuous residence had this element in them, that the pauper had had a house in the parish although he was personally absent— Beeby v. Caldwell, December 9, 1884, 12 R. 257; Hutchison v. Fraser, February 11, 1858, 20 D. 545; Crosby v. Taylor and Greig, October 21, 1869, 8 Macph. 39. The case upon which the Sheriff relied in deciding this case— Dempster v. M'Whannel & Deas, November 26, 1879, 7 R. 276—was not an exception to the rule, because, although the girl was held to be forisfamiliated, as a matter of fact she lived with her father during the time she was absent from Greenock—the parish in which she was found to have acquired a settlement by residence—and he kept a house there. It was of no importance in this case that the pauper during the periods of absence went as a servant with the family, nor that she came back to the parish of Kelton after each period, because her absence was entirely voluntary; she might have refused to go, and it was a mere accident that she returned to that parish.

The defender argued—It was admitted that the settlement of the pauper's master would not have been lost by such absence as was here spoken to, and that a servant could acquire a settlement by continuous residence in her master's house, but it was objected that there was only constructive residence for a period of a year or eighteen months. It was important to observe that that period was not continuous, but was broken into three definite periods of absence by her return to and residence for a time in the parish of Kelton, so that each absence must be viewed by itself, and the question was whether such periods of absence were enough to prevent the pauper acquiring a settlement which she would otherwise have acquired. It was to be observed that the pauper was absent with the family in which she was a servant during these periods, and in the execution of her duty, and, as her master's

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principal residence continued to be in Kelton, so did hers. That was the only test to be applied as to what constituted constructive residence— Wallace v. Beattie & Highet, January 6, 1881, 8 R. 345. There was therefore no such severance of the pauper's connection with the parish of Kelton as took place in the case of Hutchison v. Fraser, cited supra.

At advising—