bands per week for such farther time as the job may main unfinished:" Finds it averred by the defender, not denied by the pursuer, that notwithstanding the prisions of said contract the workmen's houses were finished and given over to the defender till 2d ober last instead of 31st March, and that the tions of Glengilp Cottage were not finished till 18th at last, and no justifying circumstances have been anced to excuse the failure to fulfil said contract: that the defender pleads, as arising ex contractu, the pursuer has incurred and is liable to him in the ms stated in said specification, being £30 for six excess of the limited time, computed at £5 each om said 31st March till 13th May last, and £400 for twenty weeks in additional excess, from 13th till 2d October, when the workmen's cottages were being £430 in all, under that branch of the ct: Finds that the defender pleads farther that the bas incurred and is liable to him in the penal tained in said specification, being £30 for six excess of said limited time, at £5 each week, 31st March and 13th May, and £280 more for weeks in continued excess, from 13th May till August, when the additions to Glengilp Cottage were being £310 in all, under the second branch of tract, making cumulo penalties thus pled and set the pursuer's claim to the amount of £740: hat the pursuer, while he does not dispute that he red the said penalties, contends that these can exacted to the extent of the actual loss and which the defender can instruct he has suffered the breach of contract averred, and that these ended to cover, but not to assess, the defender's amage; the defender, on the other hand, mainthe sums stipulated in the specification were an have the effect of settling and ascertaining ich the pursuer thereby and by said relative leame bound absolutely to pay to him, for the complete the work within the time limited, titis ultra vires of the Court to inquire farther damages which the defender has in consequence Finds, in point of law, and for the reasons exthe following Note, that the said penal sums es the sum to be paid by the pursuer for nonof the work in time, but limit the damages which, and to which extent, the defender can suffered in and through the pursuer's breach of Finds that as the defender has relied on said assessing his damages, he has not in process loss which he has sustained: Therefore, and beer answer, appoints him within ten days to lodge containing a statement of the damages which he ad to instruct that he sustained in and through er's breach of contract as alleged; and within eriod, appoints the pursuer to answer the same, afication. The claim of damages which the defender sets contractu, and may competently be pled in or extinction of the pursuer's demand. But put by the defender it leads to a singular he contract price of the workmen's houses, and itions to Glengilp Cottage, amounts to £928 the penalties claimed by the defender, because -completion of the work by the stipulated ted on the principle for which he contends, £740, which, with the cash paid to account, claimed, would not only absolve the pursuer's bat leave him the defender's debtor to the £297 14s. It remains to be inquired whether rule sought to be enforced by the defender tion in law. and clauses fixing and determining the liquiges to be paid for non-implement of contracts occurrence, but the result to be arrived at depends on the language which, when contracting, the parties use; because, in legal construction, penalties and liquidate damages are in such cases very different matters, and involve dissimilar liability. Undoubtedly there is a puzzling contrariety of decision by the Courts, both in this country and in England, but the preponderance of authority seems to establish these principles(1) That "where penalties are intended as liquidated damages, and especially where there appears to be nothing exorbitant in the stipulation, but a reasonable and fair proportion between the loss and the penalty, a Court of Justice will not interfere." (2) But where the penalty is manifestly exorbitant, and a penal forfeiture rather than estimated damage, a Court of Equity does interfere, the exorbitancy being taken in some sort as a criterion whether it be properly a penalty or conventional damage that has been stipulated-2 Bell's Com., 655, 5th ed. Notwithstanding this definition, there occurs in practice as much difficulty in applying it to the circumstances of each case as there exists in the converse of bringing the circumstances under the definition. Erskine, whose illustrations of the rules on this branch of the law are neither very apt nor numerous, has this observation: "That a debtor, who is bound for a fact to be performed by another, cannot, in the nature of things, be bound to precise performance, and so is liable no farther than for the conventional penalty, iii., 3, 86;" and Lord Ivory, in the foot note which, as editor, he adds, remarks, "That in obligations ad factum praestandum where a sum is stipulated to be paid in case of nonimplement, that sum is considered as the estimated amount of the damage sustained, and is not subject to modification." This view the learned editor supports by reference to cases decided under the contract of lease, as where a tenant, on the ish of his tack, became bound to pay double rent for every year he afterwards maintained possession, or had stipulated to pay extra rent for overploughing, and the like. But where extra rent is stipulated to be paid if a tenant shall choose to exercise a right which the landlord would prefer that he should not exercise, it is not of the nature of a penalty at all-the tenant elects to do the act, and he knows the price of his doing it-that the parties fixed themselves, and, in the language of Lord Pitmilly in Fraser v. Ewart, 25th February, 1813, T. C. P., 228 (a case of this very kind), "The parties made a bargain for themselves, and it is not in our power to interfere and alter that bargain. It is a hard case, but parties should consider these things when they make their bargains; and when a man enters into a bargain which is clear and express he must take the consequences. I apprehend this is the rule which has governed all former cases. The question of difficulty has always been, whether it was a conditional rent or a penalty? but when that has been settled, the rest has followed as a matter of course.' Cases where extra, or, as they are sometimes called, penal rents, have been incurred, do not furnish precedents in determining the course to be taken for the violated covenants in other contracts. But a more familiar description will be found in clauses at the close of mutual agreements, by which the parties bind themselves to the performance of their reciprocal obligations, under a slump penal sum. When that is the method followed, the rule is invariable, that the penalty (which is simply a security for performance) shall cover the loss which it may be proved non-implement of the agreement has caused the other party-Chitty on Contracts, 6th ed., p. 772. But what shall be said of a penalty, as in the present case, where the sum is not in slump, but involves a succession of weekly sums increasing in amount so long as a contract to be completed by a given date shall be extended beyond it? Such a stipulation has, at first sight, the semblance of liquidate damages, which the parties themselves having fixed, the Court had no right to interfere with. But this is only the effect of a first impression, because the intention of the parties, as expressed in the specification and contract, was not to hold these sums as the very measure of the defender's claim if the pursuer failed in completing his agreement, but as penalties to which he would be exposed in that event. Accordingly the sums are expressly described as penalties, and as such they must be regarded. Dealing with contracts enforced by penalty (Indenture), Lord Alloway, in M'Gregor v. Wright, 9th February, 1826, 1 Fac. Col., 8vo., Reports, p. 350, makes this distinct observation: "I know no case in which a proper penalty in a civil contract may not be modified to actual damage. Allusion has been made to the case of a lease, in which a penalty was stipulated of £3 per acre of additional rent for every acre not cultivated after a particular manner; but this stipulation, which was improperly called a penalty, was in fact a part of the contract. All proper penalties are liable to modification, and the great difficulty in all this class of cases is to draw the distinction, which is sometimes very nice, between penalties, properly so called, and conventional damages." "Though the intention of the parties," says Mr Sedgewick, "is the great guide of inquiry, still, in one aspect, the language may be conclusive, and it seems to be settled that, if the word penalty, or penal, be used, no construction shall convert the agreement into one for liquidate damages."-Treatise on Damages, 3d ed., p. 430. To the same effect, Mayne on Damages, p. 634. So settled is this rule, and the tendency of Courts to hold sums named in contracts, obviously intended to be penal, as merely covering damages suffered in case of failure, that it has been oftener than once decided, that even where the parties fenced the clause with the declaration that the sum should be liquidated and ascertained damages, and not a penalty, or penal sum, or in the nature thereof, the injured party could recover no more than his actual loss." Kemble v. Farrier, 6 Bingham 141; Boys v. Ancill, 5 Bingham, N. C., 390; Mayne on Damages, p. 667. Undoubtedly where parties make the sum to be paid of reasonable amount (and that must always depend on the circumstances of the case), and where it would be difficult or impossible to establish the actual extent of the loss to which the injured party might be exposed through breach of contract; and, last of all, where they expressly declared that the sum fixed was agreed to be liquidated damages, and payable to the injured party, no court of law has right to interfere. See Sedgewick on Damages, p. 430; Crisdee v. Bolton, 3 Car.; and Payne, 240. Here the sums claimed are excessive. The extent of loss seems of easy ascertainment. The clause describes the sums as penalties, and they are not, at least have not been expressed as intended to be liquidated damages. These considerations seem conclusive of the discussion. This Interlocutor was appealed, and after a hearing the following judgment was pronounced: Having heard parties' procurators under the defender's appeal upon the Interlocutor appealed against, and having made avizandum, and considered the closed record, productions, and whole process, Finds that the defender admits that the pursuer did the work referred to in the account libelled on, and that the balance sued for, being £487 3s 3d, is still unpaid, but denies that he is due that or any sum whatever to the pursuer, and pleads that the same is compensated, and more than compensated, by penalties incurred by the pursuer under the contract between the parties, through his failure to finish the work within the stipulated period: Finds that the total amount of the work under the contract and specifications, done by the pursuer, was £893 5s 9d, besides £40 for building a wall, and £35 for extra work, admitted by the defender to have been executed, being £968 5s 8d, to account of which the pursuer mits he received £450 in all, besides giving credit for sums of £11 28 6d and £20, or £481 28 6d in all, leav a balance due, as sued for, of £487 3s 3d: Finds that total amount of penalties claimed by the defender u the contract, on account of the work not being compl within the time specified, is £740, for which a cou action has been raised at his instance: Finds that in way, if the said penalties can be claimed, the balance to the pursuer for the work done will not only be wł absorbed, but there will be a considerable sum du the defender: Finds that, under the contract bet the parties, it was stipulated that a penalty of £50 sh be paid for breach of contract; and in regard to workmen's houses and Glengilp Cottage, it was prov that the whole should "be finished on or about the March, 1860, under a penalty of £5 for every week tl after, until the second week in May inclusive, and per week for such farther time as the job may remair finished:" Finds it averred by the defender that workmen's houses were not finished till the 2d of Oct and that the penalties exigible on account of them an to £430; and that the Glengilp Cottage was not fin till 18th August, and the penalties claimed on accor it amount to £310: Finds it averred by the pursuer the contract was hindered fully a year by the found turning out to be entirely rock, requiring to be rem by blasting, instead of earth, as contemplated in specification, and that the defender also delayed work by alterations extra to the contract, speciall alterations on the stone to be used for the stai Finds it pleaded by the pursuer-1st. That he doe admit that the buildings were not finished till the October, and avers that the work was completed a months prior to the dates stated by the defender. That specific implement of the contract was ren impossible by the extreme severity of the weather November till May, which rendered the work of vation and masonry impracticable during the g part of that time. 3d. That there were deviations the plans and specifications referred to in the con particularly in regard to the foundations of the buil and the staircase, which justified a part of the del the work not being completed within the stip time: Finds that, in order to determine the que Whether the full amount of the penalties stipulat the contract for the houses and cottage not finished within the specified time, or how thereof can be claimed? it is material to asc by proof, the precise time when the buildings actually finished, and the cause of any delay tha place in completing them, as well as the amount loss and damage which the defender alleges he sus in consequence of the buildings not being finished the stipulated time, in regard to all which the] reservation of the whole pleas of parties, allows e are at variance: Therefore, before answer, and them a proof of their several averments, and to conjunct probation, grants diligence against wit and havers, and remits to the Sheriff-Substitute to diet for taking the proof and proceed farther in the as to him may seem just, and meantime recalls the I locutor appealed against. Thereafter a proof was led, and parties' procu heard thereon, the Sheriff-Substitute pronounce following Interlocutor: Having heard parties' procurators on the con proof in these conjoined actions, Finds in the-I Simpson v. Hay, that the buildings in question finished on the Thursday after the Glasgow Fair of being the 19th day of July; the time therefore tal complete the work was fifteen weeks and three day 31st March, the ultimate limit fixed by the col ads that the penalties agreed by the parties in case of arbiter, after inspection on 2d October, 1860, allowed ach of contract computed for that period amount to a deduction of £20 from the pursuer's claim and the 80, which, if deducted from £487 3s 3d, the sum sued expense attending the reference, amounting per note would leave a balance of £107 3s 3d: Finds that, (No. 10/6) to £9 15s 2d, has been defrayed by the defenugh said contract was signed on 1st December, 1859, der, one half of which, £4 17s 3d, forms an item of the work was to be executed within four charge against the pursuer in the process Hay v. Simpson hs, subject to penalties in case of any excess of § M'Nicol: and in these circumstances, Finds, in point yet the site whereon the pursuer was to cut the of law, and in respect of the recent decisions cited in the and proceed with the erections, was not chosen annexed Note, that the penalties contained in the coninned off until the end of January, the delay being tract are pactional and liquidate, and, in case of contraventable to the defender or his architect: Finds that tion, do not suffer restriction to the actual amount of loss adations of said buildings, as described in the which the defender Hay may have suffered: Finds that, tion thereof, was to consist of digger work, in time-contracts, especially when fenced by penalties, stead of earth or clay it was discovered, when the party under obligation to complete the work is as were begun, that the founds, to the extent of entitled to the entire period stipulated, without obstrucf fell to be cut in a hard whinstone, rendering tion or hinderance from the obligee, and in case, through and quarrying necessary: Finds that that part fault on the part of the obligee, any portion of the agreed founds occupied ten times longer to cut than time is lost, or in case more work is added to and y digger work in earth, and caused a loss to the mixed up with that at first contracted for, the contract of four weeks: Finds that, because of the rough- is waived, and the penalties cannot be enforced if the the surface and sloping edge of the site on which original period is exceeded: Finds that, under such congs were erected, the height in front was raised, tract, badness of weather forms no excuse for failure to respondingly augmented the work beyond fulfil, and applying these rules of law to the established shown in the plans or stated in the original facts in the case: Finds that the alteration on the oriFinds that, in the course of operations, an area ginal plans, the required performance of work of a nature in whinstone, of the same kind as in the founds, not contemplated at contracting, and also the additional g fifty feet along the rear of the buildings, and work blended with and inseparable from that originally pth of from eighteen inches to two feet, and this agreed, having necessarily occupied more time than the work not contained in the specifications or in contract work, operated as a waiver of the contract itself tract: Finds that after the pursuer had supplied in point of time, and erected a new agreement to which ed steps for the two staircases of the buildings the penalties did not attach: Therefore, in the process Hay on the plans, it was determined by the defen- v. Simpson & M'Nicol, sustains the defences and assoilhitect to reverse the south staircase, and for zies the defender, except to the extent of £4 17s 3d, being other plan was prepared, to meet which altera-half the amount of the arbitration account, for which pursuer was required to procure from Glasgow, other stones, and on this account, including onveying the stones from stress of weather, the retarded about three weeks: Finds that, when fed Glengilp Cottage, in the view of erecting the agreed additional storey, it was ascertained esting joists were insufficient to carry the new and the pursuer was directed, and in consedered from Glasgow, joists of the necessary this being extra work, and creating farther Finds it proved that the additional work, alterand incident delay above detailed, hindered the bis operations at intervals to the extent of about weeks: Finds that the defender has acknowail extra work, and on 16th May, 1860, ten fter the period for completing the contract had be paid the pursuer £450 on the report of his that the pursuer was "entitled" to that sum, his first instalment" for the work (No. 12/5): at if the pursuer is legally answerable for the ecks and three days in excess of the contract be defender's direct loss amounts to 2s per week, ail, for each of the eight houses of which said 8 consisted, amounting together to £12 8s, and portion of £10, an annual sum which the defenble in payment of, to provide a house for the oficer in attendance at his distillery, the cottage ended for that officer, but the contract penalties ed, as before stated, to £380: Finds that, during he whole stipulated time, the weather was "unby coarse and broken, and unsuitable for building * keeping the masons back in their work, Evidence, Proof, p. 4), and also retarding of materials (Ibid., p. 18); although the pural in his power to have them brought forward bid., p. 31): Finds that the keys of the houses were tendered to the defender's manager job was finished, and refused because of imperthe workmanship; and reference of a discharose on that subject having been made, the finds the defender Simpson liable, but finds no expenses NOTE. The cases Johnston v. Robertson, 1st March, 1861, 23 Sess. cases 646, and Munro v. Easter Ross Union, etc., 28th May, 1862, reported 6 Jour. Juris., 369, were undetermined when the Interlocutor of 5th Dec., 1860, was pronounced. These decisions appear somewhat in conflict with the dicta of institutional writers and earlier decisions, but now settle the point, that in timecontracts specific penalties for non-performance were of the nature of pactional damages, and not subject to modification covering actual loss. It must therefore be held that if the contract between the parties, as entered into, was not fulfilled by Simpson, he is liable in the penalties claimed by Hay for the period taken to complete the work in excess of the fixed time. Nor will it excuse the pursuer that he was retarded by bad weather, Maryon v. Carter, 19th April, 1830; 4 Car. and Payne, 295-Chitty on Contracts, p. 641, nor that the vessel carrying the materials for executing the work was long on the passage, or even lost, causing thereby delay, as was unsuccessfully pled in Munro's case supra. See also Ersk. iii., 3, 84. But the condition of liability for these penalties rests upon the ground that it was the contract, as made, which was violated; so if the party proposing to exact the penalties increased the amount of the work while in progress, by blending with it additional work, or made deviations causing delay, he will in vain demand penalties as for breach of the contract which he himself varied or changed. To have entitled him to the penalties, he was bound to have required the contractor to execute M* the increased or allowed work within the original limit, for his own act amounted to a waiver of the subsisting agreement, and the substituting of another. It may be that the excess of time was out of all proportion with the extra work, but that is a consideration which cannot enter into the question, whether penalties are due as at first stipulated; there are new elements which have supervened, and changed the conditions of parties, and the penalties were not ingrafted on this altered state of matters. The point now under discussion engaged the attention of the Court of Exchequer, in Holme and another v. Guppy and another, Hilary Term, 1838, 3 Meeson and Welsby's Rep., 387; and the Court of Common Bench, in Thornhill and another v. Neats, 22d June, 1860, 2 Law Reporter, 539. Both cases related to building contracts, in which non-completion of the works within an agreed time, under pactional penalties, was the defence against payment of the builder's claims, but in each instance, as happens here, part of the delay was occasioned by the proprietor failing to give immediate access to begin, and by superadding and mixing up additional work with that contracted for, and in both the demand for penalties was refused. In Guppy's case, Baron Park, referring to the proprietor's neglect to give possession at once enabling the contractors to begin, said, It is clear that the plaintiffs (contractors) were excused from performing the agreement contained in the original contract, and there is nothing to show that they entered into a new contract, by which to perform the work in four months and a half, ending at a later period. The plaintiffs were therefore left at large, and consequently they are not to forfeit anything for the delay." The learned Judges who decided Thornhill's case proceeded on the same rationes, and the like doctrine will be found recognised in Seton v. Slade, 3 Vesey's Rep., 264, and Haswell v. Knight, 1 Young and Collier's Exc. Rep., 418. These cases support the rule stated by Mr Chitty, that "In all cases the promiser will be discharged from liability, if he be prevented by the act or default of the promisee from completing the contract within the time limited."-Treatise on Contracts, p. 645. It is also obvious that Mr Hay so understood, for he made a considerable payment to account of the pursuer's claim in May, several weeks after the lapse of the contract period, and he did so on his architect's report that the pursuer was entitled to it. It results from these considerations that the present conjoined cases must be disposed of, as in the preceding Interlocutor. Expenses have been modified in the leading case, because at least a portion of these have been incurred in contesting the question whether the penalties were taxative or meant to cover actual loss, in which the pursuer Simpson has proved eventually unsuccessful. For the same reason, no expenses have been given in the action brought by Mr Hay to constitute and enforce payment of said penalties. This Interlocutor was appealed, and after a hearing the Sheriff pronounced the following judgment: Having heard parties' procurators under their mutual appeals upon the Interlocutor appealed against, proof adduced, and whole process, adheres to the said Interlocutor, both upon the merits and the question of expenses, and dismisses both appeals. NOTE.-The Sheriff-Substitute has very properly bestowed a great deal of industry and attention in disposing of the proof which has been led under the Sheriff's Interlocutor in this important case; and after hearing the case fully argued by the parties under their mutual appeals, the Sheriff cannot discover any grounds for disturbing the Interlocutor which has been pronounced. It appears to apply correctly the principles fixed by the previous Interlocutors in the case; in particular, stipulated penalties are to be regarded as liquidated agreed on damages, and, on the other hand, that in the execution of the work, not imputable to the tractor, do not form deductions from his claim. On the point of expenses, considering the comp of the case and the legal pleas in which the pursue been unsuccessful, it appears reasonable that a c modification should be made on the expenses foun to him, which can best be considered after the ex have been taxed. Act. JOHN Bord. Alt. ROBERT R 2D NOVEMBER, 1863. SHERIFF COURT, PERTHSHIRE-PERT (SHERIFFS GORDON AND BARCLAY.) DAVID RITCHIE, Inspector of Madderty v. M'DIARMID, Inspector of Fowlis Wester, ROBERTSON, Inspector of Blackford. Pauper-Settlement.-In an action at the ins parish which had given relief to two paupers a parish of birth, and the parish of a former s the latter was found dissolved by an absence d months. THE facts are stated in the annexed Interlocuto Having advised the process, parties having mu nounced probation, and dispensed with a hearing matters of fact First. That the paupers, Andrew and Margaret were born in the defender's parish of Fowlis Weste moved to the other defender's parish of Blackford, Second. That at the term of Whitsunday, 183 there to 3d January, 1855. Third. That they on said date removed to the Comrie, where they resided until Martinmas, 1855 Fourth. That they then removed to and reside ford until May or June, 1858, when they en America, whence they were returned as paupe 1861, and took up their residence in the pursuer Madderty, and have been admitted to the roll thereof, and of which statutory notices were gi defenders. which the paupers were in course of obtaining Applying the law to these facts, Finds that th dence in Blackford, in 1851, was effectually int their non-residence therein from July to Nove and the averments by the pursuer admitted by F are not of such facts as render the said absence i but makes them subversive of, the residence in I Therefore assoilzies the parish of Blackford parish of Fowlis Wester liable in relief to the pu advances, as the same shall be agreed on or Finds the pursuer, as also the parish of Blackfor expenses from Fowlis Wester, and remits the acc to the auditor to tax, and decerns. NOTE. This case is one, viewed in the li decisions, free from doubt. Where an absen incidental, or rather accidental, to the residenc it does not interrupt the currency of a settler a visit to a friend, an occasional residence at t country for health, or, in short, any occasio where it appears clearly the person had no in rather object in, remaining for any length of tim of his sojourn, but to return to that of his form short, in the language of the Civil Law, applie the distinction is between the place where a ma and where he is not at home, where he is a here he is not. Indeed, it is difficult to lay down any eral rule in this class of cases. Each case must depend on own circumstances, and a slight difference in facts may ne the legal balance sometimes to the one side and someto the other. at wherever the party changes his residence with the of an indefinite sojourn, though after a season he does ettle, but returns to his former abode, there is a distinct of residence which is destructive of the currency of Bettlement in the first abode. (See opinion of Lord in cases of Old Deer and Aberdeen Infirmary, infra). matters little in this view how long or how short the diate residence, except as indicative of the nature and that residence. But one test is, that it must have as, if continued, would have been reckoned as part five years necessary to acquire a settlement in the date place of abode. It is the residence of the head ebold which is the sole principle of judgment. The of his wife and family, or the existence of a house by him, or situation of his furniture and effects, are of res of no avail, save as bearing on the question of the bject and actings. sting qualification introduced by the 76th section of 8 and 9 Vict., cap. 83, is very express. It is put -"No person shall be held to have acquired a in any parish by residence therein unless such all have resided for five years continuously in such The same terms of "residence" and "resided" are throughout the section. 7. Beattie, 1st December, 1857, 30 Jurist, p. 83, , with his wife, were first two years in Edinburgh; and were absent at different places for short periods, ed to Edinburgh, where they again resided confor four years-making in all, six years. The conthe residence was held dislocated. Per Lord -"When all the absences are computed and taken it makes out that the man was absent from the six months." Av. Fraser, 11th January, 1858, 30 Jurist, p. per had been resident in Old Deer for five years ths, with an absence of eleven months, part of en she was at her father's in bad health, and Eng dressmaking, to follow that craft in Old Deer, returned, and where her trunk, likely containing aldly effects, had all the time remained. NevereCourt unanimously held the settlement intercase is 10th December, 1858, Kingussie v. Blair Jurist, p. 66. The pauper there was for upwards a herd in summer in Blair, returning to his Kingussie, in the winter months. The absences not to break the continuity of the settlement in e 10th December, 1858, Kinfauns v. Scone, 31 65, is a strong authority for Blackford. The man had rented a house in Scone, and lived therein family for six years. He then deserted his wife, afterwards acquired a settlement anywhere. The amily still remained in Scone. The Court held the in Scone was lost. Per Lord President (M'Neill) was residing in a neighbouring parish, and might ing a residental settlement there. Was he to have ntal settlements? That was impossible. I do not, think that the residence of the wife and family in destroy the effect of the father's absence from it." Ce 16th December, 1858, Managers of Aberdeen *. Rathven, 31 Jurist, p. 91, Poor Law Magazine, F407, the pauper was a mariner, occasionally Fraserburgh when not at sea. He married, and ad furnished a house in Fraserburgh, where he ided for four years and eight months. At the at period he was removed to an asylum, but his ained in the house for a period completing the *ad his wife, during part of the time, dwelt in But the Court held that no settlement was Fraserburgh. Per Lord Justice-Clerk (Inglis) — thing obvious on the face of the clause in the fat the foundation of settlement is residence, i.c., idence, not mere tenancy or occupancy of a house , and apart from actual residence, is wholly and insufficient. The question of residence is different also from that of domicile, as, although residence is necessary to constitute a domicile, it is not necessary to retain it. The Statute requires actual and personal residence, and nothing in the nature of constructive residence will satisfy that requirement. Farther, the residence must be continuous; it must be for five years straight on. Residence for five years made up of separate periods at intervals is not sufficient." In the case 7th March, 1860, 32 Jurist, p. 410, Knockand v. Aberdour, a person had resided with his wife and family for five years in a parish, but for ten months had served in another parish during the week, though fre quently visiting his household on the Saturday and Sunday. It was held his residence was in the parish of his service, not of his house and family. Per Lord Justice-Clerk-"We have here nothing to do with anything except the fact of personal residence. Intention, which enters into the question. of domicile, is of no avail, neither has the occupation or renting of a house anything to do with it. Nothing but personal presence can fix upon the parish the liability contemplated under the 76th section of the Statute." This decision is consistent with a prior one not reported in any of the regular reports, but which will be found in the first volume of the Poor Law Magazine, p. 350, Eastwood v. Mearns and Cumbernauld, 13th June, 1851. In the case 24th May, 1861, Glasgow v. Govan, 33 Jurist, p. 461, the party had five years' residence in Glasgow, except for a period of about three months. In consequence of his father leaving in search of work, and a quarrel with his stepmother, he left and resided in lodgings in Govan, and thereafter returned to his father's in Glasgow. This absence, however short and incidental, was held sufficient to break the continuance of that in Glasgow. In the case 22d May, 1860, Grant v. Reid, 32 Jurist, p. 499, the question was retention of settlement by a year's residence beyond the five years, where two months' absence purchasing furniture for the house of the party was held incidental to the year's residence. But the case, as expressively stated by the Bench, was "narrow and doubtful." See opinions of the whole Court, 28th January, 1862, Eaglesham v. Barony, 31 Jurist, p. 180. Per Lord Kinloch "It appears that under the Statutory enactment, the bare fact of non-residence for the Statutory period is sufficient to extinguish the prior residental settlement, and that the cause or reasons of the non-residence are wholly immaterial. The bare cessation of residence within a parish for the Statutory period of that industry within the parish which has been supposed to give the claim for relief, appears to the LordOrdinary to have been deliberately intended by the Statute to put a period to the settlement by residence without its being left open to inquire what were the particular circumstances by which such cessation was caused." In the case, 20th December, 1863, The Barony v. Polmont and Larbert, 35 Jurist, p. 260, the man had resided in Falkirk for six years, with the exception of an interval of from three to five months, when he was resident in another parish. His employment therein was not very satisfactorily explained, but was held sufficient to interrupt the settlement. Per Lord Cowan-"The absence cannot be accounted for as incidental to a general residence in Falkirk, and merely accidental. It had no connection with that residence. It did not originate in any temporary cause, and in the contemplation, when that cause ceased to operate, of returning to his family residence and permanent occupation in the place he had left only for a time. It was a voluntary change in the locality of his residence and employment.' The case of Gray v. Chisholm, 19th December, 1857, and other cases where the absence was compulsory, as by imprison. ment in jail, or detention in an asylum, are nowise in point, just because in these cases the residence was compulsory, not voluntary; and such public places are not proper places of individual residence. Such is the principle which may decide that a birth in a maternity hospital does not render the parish wherein situated liable as the birth parish. But the authority of the case of Gray, and others of that class, is much shaken, if not altogether upset, by the recent decision of the whole Court in Eaglesham v. Barony, cited above. In the present case, the pauper, Andrew, with his sister, Margaret Robertson, and another sister, took up their abode in Blackford at Whitsunday, 1851. They dwelt together in the same house, and it matters not in the question of settle |