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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maybole Parish Council v. Kirkoswald Parish Council [1917] ScotLR 383 (09 March 1917)
URL: http://www.bailii.org/scot/cases/ScotCS/1917/54SLR0383.html
Cite as: [1917] ScotLR 383, [1917] SLR 383

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SCOTTISH_SLR_Court_of_Session

Page: 383↓

Court of Session Inner House Second Division.

[Sheriff Court at Ayr.

Friday, March 9, 1917.

54 SLR 383

Maybole Parish Council

v.

Kirkoswald Parish Council.

Subject_1Poor
Subject_2Settlement
Subject_3Constructive Residence of Husband Living Apart from Wife and Family on Account of Occupation.
Facts:

A farm labourer, who worked in one parish, had his wife and child residing with his parents in another parish, there being no suitable dwelling accommodation for them where he worked. He paid no rent to his parents. He visited his wife twice a week regularly, and he brought his wages to her. Held that the labourer was constructively resident in the parish in which his wife and child lived.

Headnote:

The Parish Council of the Parish of Maybole, pursuers, presented a petition in the Sheriff Court at Ayr wherein they craved the Court to grant a decree ordaining the Parish Council of the Parish of Kirkoswald, defenders, to pay the pursuers the sum of £28, 13s., and also to free and relieve the pursuers of all future alimentary or other advances which the pursuers might make on behalf of the paupers, Ann M'Whirter or M'Geachie and her three children, so long as any of them might require parochial relief and their parochial settlement continued to be in the parish of Kirkoswald.

The facts of the case are taken from the opinion of Lord Salvesen:—“The facts in this case have been accurately set forth by the Sheriff-Substitute. The whole case turns on whether James M'Geachie, whose wife and children are the paupers, was resident for the purpose of acquiring a settlement in the parish of Maybole from Christmas 1911 till Whitsunday 1912. M'Geachie was married on 15th September 1911, and from Martinmas he and his wife resided with his parents at Smithstone in the parish of Maybole. A room was reserved for the newly-married pair, and there they kept such effects as they had. M'Geachie did labouring work of a casual kind unti Christmas 1911, when he got a job at the farm of Cassington, two or three miles from Smithstone, and remained there till the Whitsunday following. There was no cothouse to which he could have transferred his wife; and he himself slept in a room in the farmhouse at Cassington along with several farm hands. His work required him especially during the winter to sleep at Cassington, but he came to Smithstone regularly on Saturday evenings, and generally stayed over night. He also visited his wife on Tuesday evenings, and sometimes stayed the night. After the birth of his child on 25th February 1912 his visits to Smithstone were more frequent. He brought his wages to his wife every week, and they were spent by her for her maintenance and that of the child when it arrived.”

The pursuers pleaded—“1. The said James M'Geachie having been born in the parish of Kirkoswald, and having at the date when he became chargeable no residential settlement, that parish is the settlement of and liable for the maintenance of his pauper widow and children. 2. The settlement of the said Ann M'Whirter or M'Geachie and her children, William M'Geachie, Barbara M'Geachie, and Elizabeth M'Geachie, being in the parish of Kirkoswald, the pursuers are entitled to decree as craved.”

The defenders pleaded—“1. The said James M'Geachie having at the date when he became chargeable had his settlement in Maybole parish, the defenders are not liable for the maintenance of his pauper widow and children. 2. The settlement of the said Ann M'Whirter or M'Geachie and her said children being in the parish of Maybole,

Page: 384↓

the defenders are entitled to absolvitor, with expenses.”

The Sheriff-Substitute ( Robertson), after a proof, on 15th February 1916 granted the decree craved.

The defenders appealed to the Second Divison of the Court of Session, and argued—The farm labourer lived in a bothy wnere he worked, but kept all his belongings with his wife, who lived with his parents. His settlement was in the parish of his parents, and had he been unmarried this would have been absolutely clear. It was all a matter of intention. Counsel cited the following authorities— Parish Council of Kilmarnock v. Parish Council of Leith, (1898) 1 F. 103, per Lord President Robertson at p. 108, 36 S.L.R. 107; Greig v. Duncan, (1895) 2 S.L.T. 537; Cruikshank v. Greig, (1877) 4 R. 267, 14 S.L.R. 204; Greig v. Miles, (1867) 5 Macph. 1132, 4 S.L.R. 199; Greig v. Simpson, (1888) 16 R. 18, 26 S.L.R. 19; Parish Council of West Calder v. Parish Council of Bo'ness, (1905) 8 F. 57, 43 S.L.R. 68.

The respondents argued—There was now no presumption that a man's wife and family gave him a residential settlement— West Calder ( cit.), per Lord President Dunedin, who at p. 63 expressed the opinion that the wife's residence only constituted an element of proof. Allan v. Burtonand Higgins, (1868) 6 Macph. 358, 5 S.L.R. 240, was referred to.

At advising—

 Judgment:

Lord Salvesen— After the narrative above quoted]—It was practically conceded that if M'Geachie had paid a rent for the room which his wife occupied, and if he had regularly stayed with her at week-ends, the case would be ruled by the decision in Kilmarnock v. Leith, 1 F. 103. I cannot think that it makes any difference that he had arranged with his own parents that his wife should live with them without paying rent until such time as the young couple had collected sufficient effects to furnish a house for themselves. I think, to apply the language of Lord President Robertson in the Kilmarnock case, he established and maintained a residence for his wife and child at Smithstone. He had no ties to Cassington except his work. He lived with his wife as much as the ties of his work would allow; in other words his home was at Smithstone, and he was merely at Cassington because he could not obtain regular employment nearer home. The West Calder case, 8 F. 57, is easily distinguishable. The man there had deserted his wife and family with the intention of not returning to them; and it would be hard to hold that under such circumstances he was constructively resident in a parish with which he had severed his connection, as he hoped, permanently. To use Lord M'Laren's words, he was neither there in fact nor in intention from the time that he left the parish where his deserted wife and family resided. The decision in that case accordingly presents no obstacle. It does not overrule or cast doubt upon the decision in the Kilmarnock case. It is nothing to the purpose to say that M'Geachie's wife remained in the house of his parents only so long as her husband could not find a house which they could occupy together. It was undoubtedly her residence, although intended to be of a temporary kind, and continued to be her husband's home although his work required him to be bodily absent during most of the days of the week. The doctrine of constructive residence has now been well established in our law, and in my opinion this is a clear case for applying it. It is a convenient rule, because in the case of labouring people, living on the borders of various parishes, the most permanent residence is that which the husband provides for his wife and family. His work may take him sometimes to one parish sometimes to another; but if his wife and family, whom he is supporting and with whom he lives as often as his work permits, are resident all the time in one parish, he is constructively resident there. I am therefore of opinion that we must recall the judgment of the Sheriff-Substitute and assoilzie the defenders from the conclusions of the action.

The Lord Justice-Clerk and Lord Guthrie concurred.

Lord Dundas was not present.

The Court recalled the interlocutor of the Sheriff-Substitute and assoilzied the defenders.

 Counsel:

Counsel for the Pursuers and Respondents—The Lord-Advocate ( Clyde, K.C.)— MacRobert. Agents— Fyfe, Ireland & Co., W. S.

Counsel for the Defenders and Appellants— Christie, K.C.— Forbes. Agents— Simpson & Marwick, W.S.

 1917

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