Scottish Court of Session Decisions

The Parish Council of Glasgow raised an action against the Parish Council of Cromdale and the Parish Council of Dundee Combination concluding for declarator, inter alia, that Frederick Meldrum, then an inmate of Woodilee Asylum, Glasgow, had a subsisting parochial settlement in the parish of Cromdale, and for decree against the said parish for payment of £187, 11s. 2d. expended for behoof of the said Frederick Meldrum. Alternatively the summons concluded for declarator that the said Frederick Meldrum had, when he became chargeable to the pursuers, a parochial settlement in the parish of Dundee Combination, and for decree against the said parish for the said sum.

The following narrative is taken from the opinion of the Lord Ordinary:—“in this action the Parish Council of the Parish of

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Glasgow seeks to obtain repayment from the Parish Council of the Parish of Cromdale, or, in the alternative, from the Parish Council of Dundee, of certain sums expended by way of parochial relief. The question concerns the settlement of a pauper named Frederick Meldrum.

The pauper, who is now a certified lunatic, was born in 1894, and is the lawful son of the now deceased John Meldrum and his wife, who survived her husband, but who is also now deceased.

Of the three parish Councils in the field Cromdale is at once the parish of the father's birth, of the admitted (former) residential settlement of the father, and of the pauper's birth; Dundee is the parish of the alleged second residential settlement of the father; Glasgow is the parish of the admitted residential settlement of the mother.

The following are the material facts and dates in the history of the case—(1) The pauper was born on 2nd June 1894, the family being then resident in Grantown, where the father carried on business as a baker; (2) that in the end of May or beginning of June 1895 the family removed to Dundee and there remained till 28th May 1898; (3) that on 28th May 1898 the family removed to Glasgow, where the father died in October 1898, the pauper being then a child, being four years of age; (4) that the mother and children thereafter resided in Glasgow, and were so resident on 2nd June 1908 when the pauper attained puberty; (5) that the mother died in July 1910; and (6) that the pauper first became chargeable in Glasgow on 10th May 1911 for a period of some three days. He again became chargeable in Glasgow for a few months in 1912, and finally and permanently chargeable in January 1913 when he was certified, but it is agreed that if the element of chargeability falls to be considered in the case everything turns on the few days' chargeability in May 1911.

The following express admissions were given by parties at the hearing as the basis of the discussion in the procedure roll—(1) That the facts as to the removal of the family at about Whitsunday 1895 from Grantown-on-Spey in Cromdale to Dundee are correctly set forth in answer 7 [ vide infra] for the Parish Council of Cromdale; (2) that the pauper is for the purposes of this case to be taken as having been at the material dates under no mental disability; and (3) that he is to be taken as having been in fact and in law for is familiated on 2nd June 1908 when he attained puberty.”

The parties averred—“(Cond. 5) The said pauper has not and never had any settlement in the parish of Glasgow. His parochial settlement at the dates of his respective chargeability as above mentioned was in the parish of Cromdale by reason of his birth there, or alternatively in the event of his not having been for is familiated at puberty, and his father not having a residential settlement as after mentioned, by reason of the birth and settlement of his father in that parish, and the pursuers have pressed their claim on the defenders, the Parish Council of Cromdale, on these alternative grounds. The Parish Council of Cromdale have repudiated liability as after mentioned. ( Ans. 5 for the Parish Council of the Parish of Cromdale) Admitted that the pursuers have claimed against these defenders in respect that the pauper's settlement is alleged by them to be in these defenders parish. Quoad ultra denied. Explained that the pauper's settlement at the respective dates of charge-ability was and still is in the parish of Dundee, or alternatively in the parish of Glasgow as after mentioned. ( Ans. 5 for the Parish Council of Dundee Combination) Denied that the said pauper has not and never had any settlement in the parish of Glasgow. Quoad ultra admitted. (Cond. 6) The defenders, the Parish Council of Cromdale, while admitting that the pauper was born in the said parish, have denied all liability to the pursuers on the ground that the said pauper was a congenital defective who had now been certified insane, that he was never for is familiated, and that he followed the settlement of his father as it existed at the latter's death in 1898. They further maintain and allege that the pauper's settlement was in the parish of Dundee on the ground that the pauper's said father removed his residence to Dundee in 1895 and resided there until shortly before his death in 1898, and thus acquired a residential settlement by residence for three years in the parish of Dundee Combination, which had not been lost by the necessary absence in terms of the Poor Law (Scotland) Act 1898. In the event of the pauper's said father having acquired a residential settlement in the circumstances stated the said pauper has a derivative residential settlement in the parish of Dundee Combination. Denied that the pauper has any derivative settlement in Glasgow parish. The contention that the pauper has a residential settlement in Glasgow derived from his widowed mother's residential settlement there has been put forward for the first time in the course of this action. ( Ans. 6 for the Parish Council of the Parish of Cromdale) Admitted that these defenders have denied liability to the pursuers. Quoad ultra denied subject to the explanation following. Explained that when the pauper attained puberty, on 2nd June 1908, he either took a derivative settlement in the parish of Dundee in respect that his father the said John Meldrum had acquired a residential settlement in the said parish by residence there for the space of three years ending 28th May 1898 and had not lost his said settlement at the date of his death, or he took a derivative settlement in the parish of Glasgow in respect that his mother's residential settlement was in the said parish at the date when the pauper attained puberty. The pauper still retains his settlement in the parish of Dundee, or alternatively in the parish of Glasgow as aforesaid. ( Ans. 6 for the Parish Council of Dundee Combination) The contention submitted by the Parish Council of Cromdale is referred to. Denied that the contention that the pauper acquired a derivative settlement in

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the parish of Dundee is well founded. Explained that the pauper's father did not reside in Dundee for the full three years necessary for the acquisition of a residential settlement. He arrived in Dundee in the first week of June 1895 and left on 28th May 1898. These defenders adopt the contention for the Parish Council of Cromdale that the pauper's settlement is in Glasgow parish. Quoad ultra denied. (Cond. 7) The pursuers have now as certained and they aver that the pauper's said father removed with his family to 1 Gowrie Street, Dundee, on or about 23rd May 1895, and that he thereafter resided at 2 Peddie Street, Dundee, until 28th May 1898, when he removed to Glasgow, where he died the same year. Reference is made to the statements in answer for the Parish Council of Cromdale regarding the circumstances of the said John Meldrum's residence in Dundee, which statements the pursuers admit and adopt. They further adopt the contentions of the Parish Council of Cromdale that the pauper has a settlement in Dundee which he has never lost by absence as an alternative to the contention that his settlement is in Cromdale as averred in condescendence 5. They accordingly on 11th September 1919 intimated a claim upon the defenders the Parish Council of Dundee. These defenders, however, deny liability to reimburse the pursuers for their said outlays. ( Ans. 7 for the Parish Council of the Parish of Cromdale) Admitted that the pauper's father the said John Meldrum removed with his family from these defenders' parish to Dundee. Explained that some weeks before 28th May 1895 the said John Meldrum sold the business which he had carried on for many years in Grantownon-Spey to Mr Frank M'Cook as he intended to remove to Dundee where he had taken a house at 1 Gowrie Street with entry at Whitsunday (28th May) 1895, but to which he got entry prior to that date as after mentioned. The said John Meldrum vacated his house and shop in Grantown-on-Spey, and gave entry and occupation thereto to the purchaser of his said business a week or ten days before 28th May 1895. His eldest daughter and two of the younger members of the family then proceeded to Dundee. John Meldrum's said daughter did not take up residence in said house, No. 1 Gowrie Street, immediately on her arrival in Dundee, but she obtained the keys of the house, which was standing empty, and took possession of it for her father a few days before the removal term (28th May 1895). She resided close by in the house of an aunt, and was daily at 1 Gowrie Street for the purpose of cleaning the said house and preparingit for the reception of John Meldrum and the rest of the family. She also purchased articles of furniture in Dundee which she placed in the said house in readiness for their arrival. John Meldrum remained in Grantown-on-Spey for a few days after 28th May 1895 arranging for the disposal of part of his furniture. After vacating his own house in Grantown-on-Spey the said John Meldrum and his wife resided in the house of his father-in-law. A day or two after 28th May 1895 and not later than 4th June 1895, however, the said John Meldrum and his wife and other children left Grantown-on-Spey and proceeded to Dundee. Previously to his departure he had despatched the remainder of his furniture to Dundee, and on his arrival there he at once took up residence with his family in his said house, 1 Gowrie Street, where he lived until Whitsunday 1896. At that time he removed to 3 Peddie Street, Dundee, where he resided until 28th May 1898, when he removed to Glasgow. Admitted further that the pursuers have claimed against the defenders the Parish Council of Dundee. Explained that the pursuers' said claim is well founded in respect that the said John Meldrum had acquired and retained at the date of his death on 5th October 1898 a residential settlement in Dundee, and that the pauper has a derivative settlement in the said parish through his said father. As abovementioned due notice of chargeability was given by the pursuers to the parish of Dundee in respect of the chargeability in May 1911, May 1912, and January 1913, and the pauper accordingly has never lost his said settlement in the parish of Dundee by absence therefrom for the statutory period. ( Ans. 7 for the Parish Council of Dundee Combination) These defenders adopt the averments for the Parish Council of Cromdale but deny their contentions. Quoad ultra denied.”

The pursuers pleaded, inter alia—“1. The pursuers are entitled to repayment of the sums concluded for, with expenses, from one or other of the defenders, and to decree of declarator in terms of one or other of the alternative conclusions of the summons, in respect that the pauper had no settlement in Glasgow but has a settlement in one or other of the defenders' parishes. 2. The Parish Council of the Parish of Cromdale as the parish of the pauper's birth settlement, or alternatively of the settlement of the pauper's father, are in the circumstances condescended on liable to the pursuers in payment of the sums concluded for, and the pursuers are entitled to decree in terms of the declaratory and petitory conclusions directed against these defenders; or 3. in the event of its being established by the Parish Council of Cromdale or otherwise that the pauper's settlement is in the parish of Dundee Combination in respect of the residence there of the pauper's father as condescended on, the pursuers are entitled to decree against the Parish Council of the Parish of Dundee Combination in terms of the petitory and declaratory conclusions directed against them.”

The defenders the Parish Council of Cromdale pleaded, inter alia—“2. The pauper's father having had a residential settlement in the parish of Dundee, and the pauper on attaining puberty having taken a derivative settlement in said parish through his father and never having lost same, the settlement of the pauper is in the parish of Dundee, and these defenders should be assoilzied. 3. Alternatively the pauper's settlement being in the parish of Glasgow in respect of his mother's residential settlement in said parish, these

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defenders are entitled to absolvitor.”

The defenders the Parish Council of Dundee Combination pleaded, inter alia—“3. These defenders are entitled to absolvitor in respect (1) that the pauper's father never acquired a residential settlement in Dundee; (2) that the pauper's widow mother had at the date of his for is familiation a residential settlement in Glasgow, and that the pauper then derived that settlement from her; (3) that in any event, if the pauper on his for is familiation derived a residential settlement in Dundee from his father, that settlement was thereafter lost by the pauper's continuous absence.”

On 22nd June 1923 the Lord Ordinary assoilzied both defenders.

Opinion.—[ After the above-quoted, narrative]—“The liability of Dundee is not disputed if (1) the father acquired a residential settlement in Dundee, and further, (2) this residential settlement has not been lost by the pauper's absence since he became for is familiated.

I accordingly turn at once to consider the facts above referred to which are set forth in answer 7. The material facts are these—The father sometime prior to 28th May 1895 sold his business in Grantown, vacated his house intending to remove (as he in fact did) to Dundee, where he had taken a house with entry at 28th May 1895. As at the crucial date, 28th May 1895, the family position was as follows:—The father, mother, and one or more children were de facto in Grantown residing with relations, the purchaser of his business having then obtained entry to the father's shop and house. The eldest daughter and two of the younger children as an ‘advance guard’ of the family were de facto in Dundee, also resident with relations, the eldest daughter being then engaged in preparing the Dundee house which was vacant and of which the keys had been handed over, and to which entry had been obtained a few days before the term. Within a few days of the 28th May, and not later than 4th June 1895, the father, mother, and other children and their Grantown furniture followed to Dundee where the united family thereafter resided.

In these circumstances it is maintained that the father must in law be deemed to have been constructively resident in Dundee as from 28th May 1895, and to have therefore completed his statutory three years' residence in Dundee when he on 28th May 1898 removed himself and family to Glasgow.

I am of opinion that this contention is not well founded. As at 28th May 1898, while the father's intention to remove to and to take up residence in Dundee is manifest, that intention had not been in fact carried out, and the actual presence of certain of the children in Dundee plus the occupation by them as alleged of the intended house cannot in my judgment prevail against the fact that actual residence of the father and the family as a whole only commenced a few days later.

I had a very full citation of the numerous cases in which under varying circumstances a man has been held to be ‘residing’ or ‘continuously residing’ in a parish although de facto absent from it. None of these, however, appear to me to apply to the present facts.

It is true that eminent judges have expressed, reluctantly or not, the view that the doctrine of ‘constructive residence’ once admitted involves the conclusion that, should circumstances demand such a decision, the statutory condition of residence, and that from start to finish, may be held to be constructively satisfied, and that a man may thus be held to have been ‘resident’ in a place in which throughout his life he has never been personally resident—Lord President Inglis in Beattie v. Stark, 1879, 6 R. at 959.

But even assuming this to be the logical result of the decisions, and giving the doctrine of ‘constructive residence’ its fullest application, this at least seems necessary as an irreducible minimum that as at the crucial date, viz., the terminus a quo the residence is to count, the man's home must be shown to have been definitely established in the given parish. I use the term ‘home’ in the connotation of the decisions of the law of domicile which appears to have been accepted as affording at least an analogy if not a test in cases of settlement. On the above facts I am unable to affirm that as at 28th May 1895 the father's home was so established in Dundee. That it was so established a few days later is of no moment in applying what is after all an arbitrary statutory rule. The answer is that on the essential date he was merely in the course of carrying out and had not completed his unquestioned intention to take up a new residence. Accordingly I think the present case fails on the facts to bring itself within the doctrine.

As the matter, however, was fully debated I should add that in my view there is room for distinguishing between a case in which the question is as to whether the facts suffice to initiate a residence, and a case in which the question is as to whether the facts suffice to maintain or continue an existing residence.

It is with the latter question that the decisions upon constructive residence are almost exclusively concerned.

Inasmuch as the statutory conditions require not merely residence for the prescribed period, but that such residence should be ‘continuous,'it was clearly necessary to construe continuity in a reasonable sense, and so as to conform to the ordinary social needs and habits of mankind. To hold that mere absence itself constituted a break in continuity would have rendered the statutory condition impossible of fulfilment. This being so the character and quality of the absence, and not merely its duration, naturally fell to be considered, and in this connection the conception of a person's ‘home’ assumed importance, especially in cases of married and family life. It was on the above necessity for some such workable interpretation of the statute that the doctrine of constructive residence in its origin and development rests. But as has often been stated, no fiction need be carried beyond the necessity which is its

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warrant. The test adopted in earlier case law was whether the absence in its character and duration was incidental to and consistent with the idea of general residence. In short, as was pointed out by Lord Justice-Clerk Inglis in his judgment in the case of Greig v. Miles (1867, 5 Macph. at 1141), the earlier decisions turned on the question of ‘continuity’ and not on a vicarious residence constituted by means of the presence in the parish of wife and children in the ‘home’ provided by an absentee. But the view so protested against must now be taken as settled. But while this is so it should be noted how largely the element of continuity figures in the subsequent decisions. I am not aware of nor was I referred to any decision in which the factor of ‘initial’ residence by the father was absent, that is to say, where the father was not personally present in the parish of the alleged settlement at the date on which the statutory period of residence was alleged to have commenced. This element was present in the whole court case of Greig v. Miles—the case of a sailor—though admittedly the initial residence was of very short duration, and the real issue was just one as to continuity, or as it was put by Lord President M'Neill in Mackenzie v. Cameron (1858, 21 D. 93) the bridging of ‘gaps in the currency.’ This was pointed out by Lord Deas—one of the majority judges in the case of Greig—in the succeeding case of Moncreiff v. Ross, 1867, 7 Macph. 331. In the series of cases which have followed on Greig, the cases of Moncreiff, Beattie v. Smith (4 R. 19), Milne (10 Macph. 731), Harvey v. Roger (6 R. 446), and Wallace (8 R. 345), were cases in which the sole question was whether continuity of an admitted residence of the father had been interrupted during the currency of the statutory period by the father's absence, his wife and family remaining in occupation of the home he had established. In the cases of Cruickshank (4 R. 267), Beattie v. Stark (6 R. 957), and Deas v. Nixon (11 R. 945) the same question of continuity arose in relation to the retainer during absence of the father of a residential settlement already fully acquired by him.

In each and all these cases the residence under discussion had been initiated by the personal presence of the father.

Similarly in those cases in which continuity of residence has been held to have been broken or interrupted, the father's personal residence in the new home established by him (be it only during week-ends and in the intervals when his employment permitted) has always been present as supporting the change of residence founded on. This was so in the case of Kilmarnock v. Leith (1898, 1 F. 105), and I know of no case in which interruption of residence has been decided in the absence of this element. On the contrary, the cases of Beattie v. Smith (4 R. 19), Greig v. Simpson (1888, 16 R. 18), and West Calder v. Bo'ness (1905, 8 F. 57) show that the situation of the father as the head of the home, notwithstanding full acceptance of the doctrine of constructive residence, is still the paramount consideration, and that his actual absence in circumstances which disclose a definite intention to change his residence, or an intention which is adverse to the continuation or retainer of the former residence, will prevail over the fact that wife, family, and furniture remain in the former home. The value of these cases, of course, only consists in this, that they accent the importance which still attaches to the personal presence of the father—Lord Dunedin, 8 F. at page 63.

Accordingly it is, I think, still an open question as to whether the actual presence of the father may not be an essential element to the commencement of a new residence. As at present advised I am of opinion that different considerations apply to such a case, and the cases which have arisen in which the real issue as explained by Lord Kinnear in the Kilmarnock case (1F. at 109) is as to ‘continuity,’ and I incline to the view that in such cases the new ‘residence’ is not perfected as a basis for a new residential settlement unless and until some period of actual presence of the father can be invoked. I prefer, however, to rest my judgment on this, that the facts show that in the present case the new home (apart altogether from the element of the mere absence of the father) had not been established. On the facts the case of Cavers v. Smailholm (1909 S.C. 195) most nearly approaches the present. In that case the father had taken a house in Smailholm as at 28th May. His wife and family arrived there but did not take possession of the house until the father's arrival on 29th May. It was held that the terminus a quo for the new residence was the 29th and not the 28th of May. It is implicit in the judgments, although no express reference is made to the point, that the presence of the wife and family, as also the tenancy of a house of which possession had not in fact been taken, were insufficient to constitute a starting point for residence. The present case is stronger, inasmuch as access had been obtained to the Dundee house by the daughter on behalf of her father, and the house was in course of being got ready for occupation.

I am accordingly of opinion that the case as against Dundee fails. Had a contrary conclusion been reached, it is common ground among parties Dundee would have been fixed with liability, for the residential settlement of the father so acquired would have ‘enured’ to the for is familiated son on attainment of puberty.

The next question argued before me was whether on the assumption that a residential settlement had been acquired in Dundee, that settlement had not been lost by the pauper's absence. In the view which I have taken this question does not arise for decision. But it may be convenient that I should express my opinion on the argument submitted. As before noted the crucial dates are these. The pauper ( ex concessis for is familiated and of normal capacity) attained puberty and started life on 2nd June 1908 with a residential settlement in Dundee. As he never thereafter returned to Dundee that settlement

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was admittedly lost by absence unless this was interrupted by his becoming chargeable in Glasgow for a period of three days on 10th May 1911, some three weeks before the statutory period of ‘three years’ absence' was fulfilled. On this occasion Glasgow issued the usual notice of chargeability to Cromdale and Dundee, but beyond this nothing happened. In particular neither Cromdale nor Dundee gave any admission of liability.

In this situation it was maintained in argument ( a) that the pauper's absence was interrupted, and ( b) that on the pauper's discharge from the Glasgow poorhouse on 13th May 1911 he became rehabilitated and a fresh period of three years commenced to run. If this argument was well founded there was no dispute but that the Dundee settlement was retained with consequent liability on Dundee to relieve Glasgow.

The argument was based on the case of Johnston v. Black, 1859, 21 D. 1294. In that case a pauper with a residential settlement in the parish of A went to reside in the parish of C. After the lapse of about three years he applied for and obtained during two months relief in C. The parish of A admitted liability to C in respect of the relief given. The pauper on rehabilitation in February 1852 continued to reside in C, and after the lapse of a further period of three and a-half years again became chargeable in C in August 1855. The parish of A denied liability on this occasion, but was held liable in relief to C in respect that the statutory period of absence from A since 1852 (four years) had not elapsed. The case accordingly expressly decides that the condition of chargeability may not only prevent the acquisition of a new residential settlement, but may, if liability be admitted by the parish concerned, interrupt the prescription of a former residential settlement in the latter parish, as also that in these circumstances a new period commences to run on the rehabilitation of the pauper. The ratio of the decision appears to be that the admission of the parish of A is in law equivalent to placing him on the roll of A as an admitted residenter in that parish. Lord President M'Neill (at p. 1297) who delivered the judgment of the Court thus put the position—‘The pauper became by virtue of this admission a pauper settled in the parish of A, recognised as such … and in the position of exercising and enjoying the benefit of his settlement. If he is afterwards rehabilitated he may lose that settlement; if he is not rehabilitated he will not lose it. If rehabilitated he may by an absence of five ( quaere four) years lose his settlement. There is a new element in this case … the fact of (his) being established in the parish as a pauper and his coming back in law claiming a settlement, and resettling himself there. He has the status there of a parishioner and of a pauper. It may or may not be that he will be rehabilitated. But in the meantime he is placed there as before This in effect imports that the parish giving such an admission is barred from claiming that at that date the pauper is ‘absent’ from it, and that he is taken as being resident in that parish just as if he had returned to and was being relieved in its own poor house.

It was argued that the same legal result should follow in the present case. In the first place it was suggested that inasmuch as Dundee had not replied to the notice its silence should be taken as consent, that is, as the equivalent of express admission. I reject this argument ( Jack v. Simpson, 1864, 2 Macph. 1221, per Lord Justice-Clerk Inglis at p. 1225). But the broader ground was strenuously maintained that the sending of a notice, whether it be ignored or repudiated, should be attended with the like effect as an express admission in the case of Johnston v. Black, providing always it be ultimately determined that the parish receiving the notice is the true parish of settlement. Accepting as I am bound to do the decision in Johnston's case which, though much criticised, (see Cochrane v. Kyd, 1871, 9 Macph. 836; Inverkip case, 21 R. 64) has never been overruled, the above argument appears to me to derive no aid from that decision. The whole virtue of the decision in Johnston lay in the admission given, and the case appears to me to have no application to a mere notice or claim. Short of some personal exception I see no reason why effect should not be given to the terms of the statute, and the admitted absence of the pauper from Dundee in and after 1908 should not entail loss of his settlement. The contrary conclusion would, I think, run counter to the principle laid down by Lord Kinnear in the Inverkip case ( vide supra at p. 75) that the fact that a person receives relief in one parish is not sufficient to arrest the loss of a residential settlement in another, and would thus attach to the mere giving of a notice an effect upon the law of settlement which has repeatedly been denied to it— Beattie v. Adamson, 1866, 5 Macph. 47, at p. 57.

Accordingly I am of opinion that the giving of the notice in 1911 effected no interruption of the prescription of the pauper's Dundee settlement assuming, contrary to my opinion, that he had such a settlement. The parish of Dundee accordingly disappears from the competition.

There remains only for consideration the competition between Cromdale, as the parish of the pauper's birth, and Glasgow, as the parish of the widow's residential settlement, for it is not disputed that after the father's death the widow did acquire such a residential settlement in Glasgow, and that she had such a settlement in 1908 when the pauper attained puberty. The case for Cromdale is based on the Wester Fowlis case, 1842, 4 D. 1538. In that case a legitimate posthumous child was born in Little Dunkeld, and shortly afterwards mother and child removed to Fowlis Wester where the mother acquired and died possessed of a residential settlement. The father had no residential settlement at the date of his death, The pauper lived with her mother till she was about fourteen years of age, when she went into service in various places, including Crieff. Her mother died when the pauper was about

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nineteen, and some ten years later the pauper became lunatic and chargeable to Monzievaird.

Monzievaird called into the field (1) Crieff, as the parish of an alleged residential settlement acquired by the pauper herself (a contention that was negatived on the facts and need not be further noticed), (2) Little Dunkeld, as the parish of the pauper's birth, and (3) Fowlis Wester as the parish of the mother's residential settlement. In a competition between these latter two parishes liability was held to attach to the parish of the mother's settlement. It may be noticed that the parish of the father's birth, if known, was not convened. The grounds of this decision, which was to some extent based on the old case of Colding-hame (the case of an illegitimate child) appears quoad ultra to rest rather upon policy than upon law. But the decision appears to me to apply to the present case. Here, as in Wester Fowlis, the competition is between the parish of the pauper's birth and the parish of the widow's residential settlement, alleged to be derivatively acquired by the pauper. The only added feature is that here the parish of the father's birth is also in the field. But this does not, I think, make any real difference to the conclusion in the present competition. For it is settled that in priority of liability the pauper's own birth parish takes precedence of the parish of the father's birth although postponed to the parish of the father's residential settlement, and the only effect of Lord Stormonth Darling's and Lord Low's criticism of the Wester Fowlis case in Rutherglen v. Kilmarnock (1907 S.C. 1053) would, if accepted, be to postpone the liability of the parish of the widow's settlement even to the parish of the father's birth settlement, and thus make the former the last resort of all.

If I had felt myself free to form an independent view I should have held liability to attach to the parish of the pauper's birth, and I respectfully doubt whether the same decision would have been reached had the Wester Fowlis case fallen to be decided after the exposition of the law contained in the judgments of the majority judges in the case of Craig v. Greig, 1863, 1 Macph. 1172. In that case a father with a birth settlement only died leaving a pupil son, who lived until and after attaining puberty with his mother. On attaining seventeen years of age he became chargeable, not having acquired any residential settlement on his own account. In a competition between the parish of the pauper's and the parish of the father's birth, convened as defenders by the relieving parish, the former was held liable. It appears from the facts that when the pauper attained puberty (which was the critical date) the widow had acquired no residential settlement of her own and had no other settlement than that derived from her husband. The grounds of judgment of Lord Justice-Clerk Inglis and Lords Ben-holme and Mackenzie, who were with the majority, were these (1st) that the son being for is familiated on attaining puberty, then took his own settlement, which in the absence of a residential settlement derived from the father was his own birth settlement, and that his residence with his mother after puberty was irrelevant. The survivance of the widow and the fact that the son lived with her in family was ruled out as not being in law capable of affecting the position of a minor pubes. The reasoning on which the judgment proceeds appears to me to be inconsistent with the idea that a mother is capable, as a father is, of transmitting a derivative settlement to her child. For at common law the child is not within the potestas of the mother, and the ground upon which a father is deemed to ‘earn’ a residential settlement not only for himself but on behalf of his children is lacking.

No such question arises in the case of pupil children who are dependent upon the widowed mother, for the mother in such cases is herself the pauper, and her settlement alone requires to be considered, but it may be that in certain cases, on grounds of family policy and the desire to keep the family together, the law may have regarded the mother in poor law questions as to some extent the source of derivative right of her pupil children. In principle, however, the situation of a for is familiated minor pubes, which is the case in hand, is quite different from that of a pupil child. The child then becomes sui juris, and takes a settlement in his own right. That settlement is the parish of his own birth, unless indeed his father has earned for him a residential settlement, in which case he takes that in preference, but this again in his own right, the sounder opinion being that the father in so acquiring a settlement earns it not only for himself but for his children— Hume v. Pringle, 12 D. 411; Allan v. Higgins, 3 Macph. 309; Lord Justice-Clerk Moncreiff in St Cuthberts v. Cramond, 1873, 1 R. 174, at 176. Accordingly it would in my opinion be more consonant with legal principle to hold that in the present case liability should attach to Cromdale as the parish of the pauper's birth, than to Glasgow as the parish of the widow's residential settlement, but in deference to the Wester Fowlis decision, which is binding upon me, I hold that liability attaches to the latter.”

The pursuers reclaimed, and argued—1. The father of the pauper having vacated his house at Grantown and taken a house in Dundee from 28th May 1895 was constructively resident in the latter parish during the few days prior to his taking up actual residence there— Greig v. Miles, 1867, 5 Macph. 1132; Moncrieff v. Ross, 1869, 7 Macph. 331; Milne v. Ramsay, 1872, 10 Macph. 731; Beattie v. Smith, 4 R. 19, 14 S.L.R. 22; Cruickshank v. Greig, 4 R. 267, 14 S.L.R. 204; Beattie v. Stark, 6 R. 956, 16 S.L.R. 544; Wallace v. Beattie, 8 R. 345, 18 S.L.R. 289; Deas v. Nixon, 11 R. 945, 21 S.L.R. 637; Kilmarnock Parish Counoil v. Leith Parish Council, 1898, 1 F. 103, 36 S.L.R. 107; Cavers Parish Council v. Smailholm Parish Council, 1909 S.C. 195, 46 S.L.R. 170. Thus the father had acquired a residential settlement in Dundee which the pauper derived from him. 2. Assuming that the pauper had lost his settlement in Dundee by absence,

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he did not take a derivative settlement in Glasgow from his mother, and accordingly he reverted to his own birth settlement in the parish of Cromdale. The case of Crieff v. Fowlis Wester, which was to the contrary effect, was unsound, and had been impliedly overruled by the trend of subsequent decisions. A child whose father was dead took a derivative settlement from its mother during pupillarity only in order to prevent the dispersal of the family— Coldinghame v. Dunse, 1779, M. 10, 582; Hume v. Pringle, 1849, 12 D. 411; Grant v. Reid, 1860, 22 D. 1110; Adamson v. Barbour, 1853, 1 Macq. 376; Craig v. Greig, 1863, 1 Macph. 1172; M'Lennan v. Waite, 1872, 10 Macph. 908; St Cuthbert's Inspector of Poor v. Cramond Inspector of Poor, 1 R. 174; Greenock Parish Council v. Govan Combination Parish Council, 1905, 7 F. 884, 42 S.L.R. 682; Rutherglen Parish Council v. New Monkland Parish Council, 1907 S.C. 1053, 44 S.L.R. 757; Greenock Parish Council v. Kilmarnock and Stirling Parish Councils, 1911 S.C. 570, 48 S.L.R. 444.

Counsel for defenders were not called on.