Old Kilpatrick Parish Council v Kilmarnock Parish Council
| Jurisdiction | Scotland |
| Judgment Date | 14 June 1929 |
| Docket Number | No. 76. |
| Date | 14 June 1929 |
| Court | Court of Session |
Lord Mackay, Lord President (Clyde), Lord Sands, Lord Blackburn, Lord Morison.
Poor—Settlement—Derivative settlement—Wife deserted by husband who had left the country—Wife maintained by parish of husband's residential settlement—Loss of residential settlement by husband during wife's chargeability—Husband arrested and imprisoned on day of his return to Scotland—Liability thereafter of parish of husband's birth settlement for maintenance of wife.
A wife and children were deserted by the husband and father, who went to England. They thereafter received parochial relief in the parish of the husband's residential settlement. During the husband's absence he lost his residential settlement and reverted to his birth settlement. He subsequently returned to Scotland, and, on the day of his return, he was arrested on a charge of desertion. He was detained in custody, and received a sentence of imprisonment. On its expiry he resided in the parish of his birth settlement, but was not then ablebodied, and was unable, owing to illness, adequately to aliment his wife and children. The latter continued to receive relief in the parish of his former residential settlement.
In an action by that parish against the parish of the husband's birth settlement, concluding for declarator that, as from the date of the husband's return to Scotland, or alternatively as from the date of his liberation from prison, the wife and children were chargeable to the defenders, and for repayment of sums expended on their aliment since these dates,—
The Court (rev. judgment of Lord Mackay) granted decree of declarator and for repayment as from the date of the husband's liberation from prison; holding that, in view of the husband's immediate arrest on the date of his return, his wife and children did not then cease to be chargeable in their own right to the pursuers, but that, on his liberation, they became derivatively chargeable to the defenders.
Authorities reviewed, per the Lord President.
On 20th January 1928 the Parish Council of Old Kilpatrick brought an action against the Parish Council of Kilmarnock, concluding for declarator that on 28th March 1927, or alternatively on 16th June 1927, Robert Hamilton ‘had, and still has, a parochial settlement in the parish of Kilmarnock, and that his wife … and his children … were on the same date, and have since continued to be, destitute, and were and are objects of and entitled to parochial relief by the defenders’; and for repayment of sums expended by the pursuers in alimenting Hamilton's wife and children after 28th March 1927, or alternatively after 16th June 1927. The alternative conclusions and the relative plea (3) were added by amendment when the case was in the Inner House.
The facts of the case were thus set forth in a joint minute of admissions by the parties:—‘(1) Robert Hamilton has a birth settlement in the defenders' parish. He acquired a residential settlement in the pursuers' parish prior to the year 1919. In May 1921 he deserted his wife and family and has never since that date lived in family with them. His wife and family received parochial relief from the pursuers' parish in or about November 1920, because the husband, who was then absent from home, was not sending his wife and family sufficient money for their support, and, from May 1921 until at least 27th March 1927, Mrs Hamilton and her children were chargeable to the pursuers' parish as paupers in their own right. They have been continuously in receipt of parochial relief from the pursuers' parish from November 1920 till the present date. (2) Throughout the period from 1920 to 1927 Robert Hamilton was absent from the pursuers' parish. For four years prior to March 1927 he was living in London, where he supported himself in employment as an engineer until January 1927. Throughout this period he made no contribution towards the support of his wife and family. From 15th to 25th February 1927 he drew National Health Insurance Sickness Benefit, which during that time was his only means of subsistence. From January 1927 until at least October 1927 he was not at any time ablebodied, having between these dates suffered continuously from “diabetes mellitus.” (3) On 25th March 1927 Robert Hamilton travelled from London to Kilmarnock for the purpose of attending a wedding. On the same day he was arrested in Kilmarnock on a charge of deserting his wife and family, which charge was lodged with the police by the pursuers' inspector. Before having him arrested the pursuers took no steps to ascertain whether he was in a position to support his wife and family or whether he was willing to do so. Subject to the correspondence hereinafter mentioned the pursuers never at any time referred Mrs Hamilton to her husband as the person liable to support her and the children. At the date of his arrest the diabetes mellitus from which Hamilton suffered threatened immediate danger to his life. He had lost his residential settlement in the pursuers' parish in or about the month of May 1924, and his birth settlement in the defenders' parish had then revived. His name has never at any time been placed on the roll of paupers in the pursuers' parish, and he never applied to them for relief for himself or his dependants at any time. On the other hand, the names of Mrs Hamilton and her children were put on the said roll in November 1920, and have remained there ever since. (4)Hamilton was detained in custody until 28th March 1927, on which date he was sentenced in the Sheriff Court at Dumbarton on a complaint at the instance of the pursuers to three months' imprisonment for desertion of his wife and family, and was confined in prison and hospital until 13th June 1927. On being arrested and charged he made no statement about the condition of his health. On being sent to prison he was removed from prison to hospital for treatment of the diabetes mellitus from which he was suffering. Warrant for his removal was granted by the Sheriff at Glasgow on 30th March 1927 on production of a certificate by the two prison doctors that he was suffering from that disease which threatened immediate danger to life and which could not be treated in prison. (5) On being released Robert Hamilton immediately returned to Kilmarnock, where he resided with his mother for over three months, during which period he was not employed but was receiving sickness benefit from his trade union, and medical treatment. On 16th June 1927 the pursuers wrote the defenders that Mrs Hamilton was quite prepared to resume her duties as a wife and reside with him provided he had a house for her. Hamilton replied that he had no house to offer her, but would pay her one-half of his insurance money of 28s. per week until other arrangements could be made. His wife wrote him on 24th June 1927 accepting his offer meantime pending an improvement in his position, and saying that the whole matter so far as she was concerned was still in the hands of the pursuers, who wanted him to provide her and the children with a home and adequate maintenance as soon as possible. He thereafter sent her the remittances shown in the statement, No. 6 of process. He thereafter returned to London, where he now is. He has again supported himself in employment as an engineer and his average wage in December 1927, taking one week with another, was £4,10s. 5d. a week. During December 1927 he was fully employed, but both before and since then his employment has been irregular. From 13th June to 24th September 1927 he drew National Health Insurance Sickness Benefit. Since June 1927 he has made certain payments towards the support of his wife and family, which are correctly set forth in the statement produced by the pursuers. (6) From November 1920 until the present date advances have been made by the pursuers to the wife and family of Robert Hamilton. The amount of these advances from 28th March 1927 until 28th December 1927 is correctly set forth in the statement No. 6 of process.’
It was admitted on record that notice and claim under section 71 of the Poor Law (Scotland) Act, 1845, had been sent by the pursuers to the defenders on 28th March 1927. A further notice, the validity of which was not admitted, had been sent on 16th June 1927.
The pursuers pleaded, inter alia:—‘(1) In respect that the said Robert Hamilton's birth settlement is in the defenders' parish and that his residential settlement in the pursuers' parish had been lost prior to 28th March 1927, the pursuers are entitled to decree as concluded for. (2) The settlement of the said Robert Hamilton being in the defenders' parish, liability to relieve his wife and children passed from the pursuers to the defenders as from 28th March 1927, and the pursuers are entitled to decree as concluded for. (3) Alternatively, liability to relieve the wife and children of Robert Hamilton having passed from the pursuers to the defenders as from 16th June 1927, the pursuers are entitled to decree for the sums expended on such relief since that date.’
The defenders pleaded, inter alia:—‘(2) The said Robert Hamilton's wife and children having been paupers in their own right throughout the whole period of chargeability, the defenders should be assoilzied. (3) The settlement of the said wife and children having been in the pursuers' parish when they became chargeable and chargeability having continued ever since, the defenders should be assoilzied. (4) The said Robert Hamilton not being able-bodied at the time he was traced by the pursuers, or at any time since then, the defenders should be assoilzied. (5) The defenders not having been liable to relieve the said wife and children at any time during the period of claim, they should be assoilzied. (6) The settlement of the said wife and children having been in the pursuers' parish throughout the period of claim, the defenders should be assoilzied...
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