Parish Council of Kilmarnock v Parish Council of Leith
| Jurisdiction | Scotland |
| Judgment Date | 25 November 1898 |
| Date | 25 November 1898 |
| Docket Number | No. 21. |
| Court | Court of Session |
Lord M'Laren, Lord Low, Lord President, Lord Adam, Lord Kinnear.
PoorSettlementConstructive ResidencePoor-Law Act, 1845 (8 and 9 Vict. cap. 83), sec. 76.
A miner resided with his wife and family in Kilmarnock from November 1888 to May 1891. In May 1891 the miner, being in arrear with his rent, was unable to get a house in Kilmarnock, and his wife and family removed to Ayr, where they lived in a house rented by him until November 1892. During this period the miner, who was employed at Kilmarnock, continued to live there in the house of a brother-in-law as a guest, visiting his wife and family at the end of every week. In November 1892 the miner's wife and family returned to Kilmarnock and lived there with him until May 1896, when they claimed and obtained parochial relief
In an action by the parish of Kilmarnock against the parish of the miner's birth, held (dub. Lord Kinnear) that between May 1891 and November 1892 the miner's residence was in Ayr, and therefore that he had not acquired a residential settlement in Kilmarnock.
On 21st May 1896, Margaret Miller, wife of James Miller, miner in Kilmarnock, applied for and obtained parochial relief for herself and her children from the parish of Kilmarnock. James Miller himself obtained relief in December 1896.
The Parish Council of the parish of Kilmarnock brought an action against the Parish Council of the parish of Leith, which was the parish of James Miller's birth, for payment of the amount expended by the pursuers in alimenting the Millers, and for relief of any further advances they might have to make.
The defenders averred that James Miller had acquired a residential settlement in Kilmarnock prior to May 1896.*
The following were the material facts disclosed by a proof:From November 1888 to May 1891, Miller and his family lived at Kilmarnock, where he was employed as a miner. In May 1891 Miller had to leave his house at Kilmarnock because he was in arrear with his rent, and for the same reason he was unable to get another house in that town. His wife and family accordingly removed to Ayr, where they lived from May 1891 until November 1892 in a house rented by him. During this period Miller continued to work and reside at Kilmarnock. For a small part of the time he lived in a lodging-house, but during the greater part he lived in the house of his brother-in-law. He did not pay anything to his brother-in-law for his lodging. While his wife and children lived in Ayr, Miller visited them every week on Saturday, returning to Kilmarnock on Sunday. In November 1892 Miller obtained a house in Kilmarnock, and his wife and children then returned to Kilmarnock and lived with him there until the date on which they became chargeable to the parish.
On 1st March 1898 the Lord Ordinary (Lord M'Laren for Lord Low) pronounced this interlocutor:Finds that James Miller did not acquire a settlement in the parish of Kilmarnock, and that his birth settlement is in the parish of Leith: Therefore decerns against the defenders in terms of the conclusions of the summons: Finds the pursuers entitled to expenses, &c.*
The defenders reclaimed, and argued;The question was one of fact, and the hypothesis of the Lord Ordinary's judgment was that the residence in Ayr was intended to be permanent. This view was not supported by the evidence, which, on the contrary, shewed that the pauper had not adopted Ayr as his permanent residence. The sole reason why the pauper's family removed to Ayr was that he could not obtain a house in Kilmamock in May 1891. There was no mining work to be obtained at Ayr, and as soon as the pauper could get a house in Kilmarnock, be brought his family back to that town. The temporary absence of the pauper's wife and children in Ayr could not therefore be held to interrupt the continuity of his residence in Kilmarnock, which he himself had never left. Constructive residence could not be founded on for the purpose of constituting an interruption of the continuity of a pauper's personal residence, but only for the purpose of making an addition to that residence, and in no case was the doctrine of constructive residence applicable unless there was first personal residence by the pauper in the place where he was said
to have constructively resided.1 Where the residence of a man's wife and family was in a different place from his own, he was held to be resident, in the sense of the Act, in the place where he personally resided.2
Argued for the pursuers;The Lord Ordinary was right. On the authorities quoted the question of importance was where was the home of the person whose settlement was in question, and the evidence in the present case shewed that Miller's intention was to transfer his home to Ayr in May 1891. If that was the case the continuity of his residence at Kilmarnock was interrupted.3
At advising,
Lord President.At this time of day we have not to reconsider, but
to apply, the doctrine of constructive residence in poor-law cases. Examining the present case from that point of view, I have come to be of the same mind as the acting Lord Ordinary.
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