Rothes Parish Council v Elgin Parish Council
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1928 |
| Date | 20 July 1928 |
| Docket Number | No. 98. |
| Court | Court of Session |
Lord Ormidale, Lord Hunter, Lord Anderson.
PoorSettlementDerivative settlementIllegitimate childrenMarriage of mother during chargeability in respect of childrenWhether parish of mother's new settlement subsequently liable.
A woman, having two illegitimate pupil children maintained by the parish of her birth, married. In a question between the parish of her birth and the parish of her husband's settlement as to the liability to maintain the children after the date of the marriage,
Held (1) that the settlement of a pauper when relief was first granted remained the settlement of the pauper so long as pauperism continued; (2) that there had been no cessation of pauperism in the present case, whether the mother or the children were regarded as the paupers, the husband having no responsibility for the support of his wife's illegitimate children, and the wife being still unable to support them; and (3) that, accordingly, liability for the maintenance of the children had not been transferred to the parish of the new settlement acquired by the wife through her husband.
Beattie v. AdamsonUNK, (1866) 5 Macph. 47, followed. Authorities considered.
Mary Jane Mackay had two illegitimate children, a daughter, born in Rothes on 27th February 1919, and a son, born in Spynie on 18th May 1921. At these dates her settlement by birth was in the parish of Rothes, and she had not acquired any residential settlement. Upon 6th February 1925 she was married to Robert Ferguson, fireman or general labourer, whose settlement by residence then was, and had since continuously been, in the parish of Elgin.
Questions having arisen between the Parish Councils of these two parishes concerning the liability for payments of aliment for the children, who were paupers, a special case was presented for the opinion and judgment of the Second Division of the Court of Session.
The first parties were the Parish Council of Rothes, and the second parties were the Parish Council of Elgin.
On 20th January 1920 relief had been granted by the Parish Council of Rothes, the first parties, in respect of the daughter on her mother's application. Since that date the daughter had resided in the poorhouse or had been boarded out at the cost of the first parties. In particular, she had been boarded out continuously at the cost of the first parties since 27th April 1920, the date when she was last resident in the poorhouse. On 7th February 1921 the mother applied to the first parties for relief. She was then admitted to the poorhouse, and remained there until 21st June 1921, when she ceased to receive relief. The son was born in the poorhouse, and removed therefrom by his mother on 21st June 1921. On 3rd January 1925, on the application of his mother to the first parties, the son was re-admitted to the poorhouse, and since 10th January 1925 he had been boarded out at the cost of the first parties. From and after 11th March 1925 payment had been made in respect of the board of the two children, subject to any claim of relief competent to the first parties against the second parties. The contributions since 11th March 1925 amounted, as at the close of the last completed periodical accounts in November 1927, approximately to 108, 11s. 1d. During the period last mentioned, the daughter had been a boarder in Rothes, and the son had been a boarder in Elgin.
The first parties contended that Mary Jane Mackay acquired, on her marriage to Robert Ferguson, a settlement in the Parish of Elgin; that that settlement then became, and still was, the settlement of the children; and that the second parties were accordingly liable for the contributions to aliment.
The second parties contended that any settlement acquired by Mary Jane Mackay consequent on her marriage to Robert Ferguson did not affect the liability of the first parties for the contributions towards the aliment of the children, and that the second parties were accordingly not liable in relief to the first parties.
The questions of law for the opinion and judgment of the Court were:(1) Did the contributions to aliment of the said children become exigible from the second parties from and after the date of the marriage of the said Mary Jane Mackay (now Ferguson)? or (2) Are the said contributions exigible from the first parties?
The case was heard before the Second Division (without the Lord Justice-Clerk) on 12th July 1928.
Argued for the first parties;Conflicting decisions upon a similar point to that raised by this special case had been given by the Scottish Board of Health in Kinellar Parish Council v. Keithhall Parish Council1 and by the Sheriff-substitute at Hamilton, affirmed by the Sheriff of Lanarkshire, in Kilmarnock Parish Council v. Dalserf Parish Council.2 The question had not been decided in the Court of Session. The general rule of law was that the settlement of an illegitimate child was the settlement of the mother in whatever way she might have acquired it.3 The chargeability of the children, therefore, arose in respect of the settlement of the mother, just as a wife was chargeable in respect of the settlement of her husband.4 A husband could acquire a new residential settlement even though his wife was getting relief, and that would cause a transference of chargeability in respect of her to the parish of his new settlement.5 On the same principle, the children in the present case became chargeable to the Parish of Elgin on the marriage of their mother. The case of Primrose v. MilneSC6 supported this view. The case of Beattie v. AdamsonUNK7 was founded on by the second parties. In that case the child was a pauper in its own right, which was not the case here. The decision in BeattieUNK7, therefore, did not apply. Moreover, while that case and the cases following thereon8 laid down that a derivative settlement could not be lost during chargeability, they clearly indicated that this rule was subject to the qualification that the state of matters might be altered when a change of circumstances occurred.9 Such an alteration was illustrated in the case of Brechin Parish Council v. Montrose Parish CouncilSC.10 The first question, therefore, should be answered in the affirmative, and the second question in the negative. Reference was also made to the undernoted authorities.11
Argued for the second parties;The marriage of the mother did not interrupt her chargeability as a person entitled to poor relief in respect of her children. Her husband did not become liable for the maintenance of these children, and she continued to be a pauper in respect of the relief given to them, notwithstanding her marriage.
Further, there could be no change in the settlement of a pauper, or at least no effect could be given to any change in settlement, while chargeability continued. The law on this matter was clearly settled by the cases of Beattie v. AdamsonUNK1 and Parish Council of Paisley v....
To continue reading
Request your trial
-
Old Kilpatrick Parish Council v Kilmarnock Parish Council
...1910 S. C. 404; Old Machar Parish Council v. Aberdeen Parish Council, 1912 S. C. 26; Rothes Parish Council v. Elgin Parish Council, 1928 S. C. 918. The learned counsel for the defenders, Mr Cooper, on the other hand, took the view that, however attractive the prospect of deciding an open an......
-
Kincardine County Council v Aberdeen County Council
...(1866) 5 Macph. 47; School Board of Glasgow v. Parish Council of Glasgow, 1916 S. C. 26; Rothes Parish Council v. Elgin Parish Council, 1928 S. C. 918. 9 Graham on the Mental Deficiency and Lunacy (Scotland) Act, 1913, p. 91; Graham on Poor Law (1922 ed.), p. 325; Old Machar Parish Council ......