The case of Scott and Anderson does not appear to be applicable; it was a case in which effect was given by the Court to a long series of payments as affecting the proof of a very obscure and difficult question of fact. There is no matter of doubtful fact here, and in that case there was no case of mistaken fact arising from representations made by the other parish.
Strange enough, the parish of Tullynessle, in May 1850, had made an admission, in correspondence with Banff, that Tullynessle was Cruikshank's parish of settlement. It was retracted on the footing of a supposed broken residence, since disproved. In this case, when the discovery was made of the error in fact which led to the payments, it was retracted. The retractation was made in a short time in one case, and after a considerable time in the other; but the retractation should receive as much effect in the one case as in the other, if made on the discovery of the true state of the facts.
As to the loss of settlement by non-residence, it seems hopeless after the decision in the case of Beattie v. Adamson , 23d November 1866, 5 Macph. 47, as I view that judgment. Here the question is as to the settlement of Margaret Forrest. Her settlement was acquired no doubt derivatively from her late husband's; but her own settlement, When she became chargeable, was Tullynessle—Has she ceased to be chargeable to Tullynessle because they have hitherto escaped payment of the sums truly due by them? Her settlement, once fixed, does not change while chargeability remains. That she resides in a parish different from the parish truly chargeable can really make no difference. Confessedly, notice was given by Premnay of the application of Margaret Forrest, if so, as it turns out, they were the true parties liable. Evading liability, in consequence of a mistake arising from their inspector's misstatement of fact, can never absolve them, though the claim may be lost by the true parish by virtue of the statute. The ratio of the judgment in the case of Beattie , as I read the exposition of the law as expressed by the presiding judge, and adhered to by the majority of the Court, appears to have been because a pauper pupil had been admitted on the record—no doubt but incautiously—to
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Lord Cowan —after narrating the leading facts — The first question raised is, that the payments by Fyvie to Shearer are to be held as a recognition by that parish of Cruikshank's settlement being, not Tullynessle, but Fyvie itself, although Cruikshank had all the time from 1840 had his industrial residence in Tullynessle. To this there are several answers.
Fyvie having paid any of these advances arose from Tullynessle's representations that no residential settlement had been acquired by Cruikshank in that parish. 2. That as Cruikshank was able-bodied, Fyvie could not legitimately make advances to Shearer, or seek relief of such advances from the poor's funds of any parish, their only relief being against the husband, who was bound to support his wife. And 3. That such advances to Shearer would not affect the legal settlement of Cruikshank himself, whose industrial settlement was indisputably Tullynessle; so that if he had fallen into poverty when resident in that parish his right to relief was indisputable.
Accordingly, what was the fact? Cruikshank did not remove from the parish until 1857, and being in poverty, he was admitted on the list of casual poor of Tullynessle, and got allowances of meal during the years 1856 and 1857.
Cruikshank married Margaret Forrest, the pauper, before leaving Tullynessle at Whitsunday 1857. They went to the parish of Premnay, where they became chargeable.
Premnay gave statutory notice to Tullynessle on 23d January 1858. This led to the letters from Tullynessle of 30th January, 10th June, and 21st June 1858, to Premnay, and to advances to Cruikshank by Premnay, of which relief was demanded from Fyvie, and repayment made by that parish in February 1859. For the advances by Premnay, thus repaid by Fyvie on February 1859, Tullynessle was responsible, as it was under their letters that Premnay made those advances.
Keeping these facts in view, the second plea in defence has to be considered, viz., that the residential settlement in Tullynessle of Cruikshank, and, through him, of his widow the pauper, has not been retained, under the second branch of 76 of the statute. After Cruikshank left Tullynessle in 1857, he did not return before his death, in 1860, and the pauper has not resided within the parish. Hence it is said that, at the date of the statutory notice, 14th August 1852, the pauper and her husband were upwards of four years absent from the parish, and their residential settlement was consequently lost. The answer to this plea is, that for at least two years before leaving Tullynessle Cruikshank had been receiving relief as a pauper chargeable on that parish; that after his removal to Premnay, on obtaining relief there, statutory notice was given to Tullynessle in January 1858; and that the advances made by Premnay were under the sanction of Tullynessle, although Fyvie, acting on the erroneous statements made by Tullynessle, relieved Premnay of those advances, and continued to support Cruikshank during his life, and his widow after his death, without giving notice until 1862 to Tullynessle.
The general question argued by defender is not therefore raised by the facts. The statutory notice by Premnay kept the liability of Tullynessle for the pauper's support an open claim against that parish. The advances by Premnay, given in compliance with Tullynessle's instructions, cannot be viewed in any light other than as made by Tullynessle itself. No doubt Fyvie paid those advances to Premnay, although no statutory notice had been given to Fyvie; but this was not until January or February 1859, between which date and the date of the statutory notice to Tullynessle, in August 1862, no less period than four years intervened. I hold Premnay to have supported the pauper on the requisition of Tullynessle during the year 1858. It is only after January 1859 that Fyvie recognised the claim made by Premnay for advances on account
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Whether it would be so in such a case as that stated by me in Beattie v. Adamson , 23d November 1866, does not seem to have been decided, and it is not necessary to decide it in this case.
The specialties in the facts are conclusive against the plea, supposing it otherwise well founded; for relief was here given to Cruikshank while in the parish of Tullynessle, and afterwards when resident at Premnay, although Fyvie through misconception repaid those advances to Premnay. See Johnston v. Black , 13th July 1859, &c.
The other judges concurred.
Solicitors: Agents for Advocator— Renton & Gray, S.S.C.
Agent for Respondent— John Auld, W.S.