as far as regards said pauper; but quoad ultra sustains the defences of the said John Malcolm, and assoilzies him: Repels also the defences of Ebenezer Adamson, inspector of poor for the city parish of Glasgow, in as far as the summons concludes against him for the sum of £13 19s 4d, as the cost of board in Govan poor house for the pauper Annie Gallocher from 10th September, 1860, to 30th November, 1861, and decerns against said defender for said sum, with interest as libelled, and for relief in terms of the conclusions of said summons in so far as regards said pauper; but quoad ultra sustains the defences of the said Ebenezer Adamson, and assoilzies him: Sustains the defences simpliciter for the defender Peter Beattie, and assoilzies him from the whole conclusions of the action: Finds the defender Malcolm liable to the pursuer in the expenses effeiring to the constitution of the claim for relief of the sums advanced to the pauper Rebecca M'Intyre, or Darroch, or Gallocher, and the defender Adamson liable in the expenses effeiring to the constitution of the claim for the sums advanced to the pauper Annie Gallocher: Finds both of these defenders also liable, jointly and severally, in the expenses incurred by the defender Beattie.

NOTE. Several points of importance in parochial law are involved in this case. The first question for solution is, whether John Gallocher had retained a residential settlement in the parish of Barony at the time of his death. It is not disputed that he had ceased to reside in that parish for upwards of five years; and the only ground on which it is maintained that he had such settlement is, that the 5s given to him or his daughter in September, 1858, interrupted his industrial residence in the city parish, and diminished the period of computable absence from Barony to less than two years, viz., from October or November, 1858, to August, 1860. But there are two answers to this view. In the first place, it is based on the erroneous supposition that the same circumstances which prevent the acquisition of a new residential settlement also prevent the loss of an old. It may be held to be settled by the cases of Johnston, July 13, 1859, and Simpson, July 18, 1859, that the receipt of a relief bona fide administered to a party entitled to parochial assistance, though small in amount, and given for only a month or two in the course of a residence of five years, prevents the acquisition of an industrial settlement, by cutting off from the computable period the residence prior to the administration of relief. This is strictly in conformity with the provisions of section 76 of the Statute, which enacts that for the acquisition of a settlement there must be five years' continuous residence, without common begging, and without receiving or applying for parochial relief. But the same section provides absolutely that no person who has acquired a settlement by residence shall be held to have retained it, "if, during any subsequent period of five years, he shall not have resided in such parish or combination continuously for at least one year." Accordingly, in the case of Hay v. Scott, November 23, 1852, it was held that the receipt of 4s 6d during a five years' residence in the parish of Edinburgh did not prevent the pauper's absence from Duddingston from receiving effect, so as to destroy his settlement in that parish. And, in like manner, in Turnbull, 27th February, 1858, the receipt of a few shillings to temporary aid was held not to prevent the loss of a residential settlement by absence. In the case of Simpson above quoted, the Lord Ordinary took pains to point out the distinction introduced into the Statute between "the requisites of acquisition and the grounds of loss of a settlement." He says"In order to infer the loss of settlement, it is enough if the party shall not, within five years, have resided for one year in the parish-a result which the Court have held to be operated by a continuous absence for more than four years, though this be a period too short for acquiring a settlement elsewhere. It would seem that in the case of Turnbull the Court considered the bare fact of residence out of the parish for the sufficient period as itself destructive of the previous settlement without regard to any other considerations. The test of liability,' says Lord Cowan, is simply the fact of residence, or non-residence, for the period necessary to retention of the settlement.' But, in the second place, there are in the present case farther elements which make the argument for the retention of Gallocher's settlement in Barony altogether untenable. What weighed a good deal with the Court, both in Johnston and Simpson, was-that the parish of settlement admitted the necessity and propriety of the temporary relief which was given by the parish of residence, and repaid the

advance; whilst here, on the contrary, Barony denied at the time, and has done so ever since, that the relief of a shilling per week, given by the city parish for five weeks, was legally exigible; and the latter parish, finding that it could not operate repayment, discontinued the allowance. There can be no doubt also, in point of fact and law, that John Gallocher was at the time an able-bodied man in regular employment and in receipt of good wages, and that he had, in such circumstances, co right to parochial aid, although he happened to be burdened with one child nearly blind. The case of Adams, 27th Feb., 1849, affirmed on appeal, 26th March, 1852, sufficiently estab lishes this; and in maintenance of the principle there given effect to, and directly in point here, we have the later case of Petrie, March 4, 1859, where it was held that even where an able-bodied man was out of employment, and received 8s of parochial funds "for the sake of his family," he had no right to claim parochial relief-that its receipt could not interrupt the continuity of an industrial residence. If it were to be said that the 5s were not given to John Gallocher, but to the paoper Annie Gallocher, who was at the time about nineteen years of age, then it must have been given to her as entitled to it in her own right, and the whole theory of an interrupted residence in the parish of Glasgow, as regards Gallocher himself, would fall to the ground. The answer to the second question raised, namely, whether John Gallocher acquired a residential settle ment in the parish of Glasgow, is to a great extent anticipated by the preceding observations. By his desertion of his wife and child between October, 1855, and February, 1856, he be came chargeable, through them, to the city parish; and even though he had not been chargeable, the continuity of his res dence was broken, so that it became computable for the acqui sition of an industrial settlement only from the date of his return to his family in February, 1856. From that date till his final departure from the parish in July, 1860, five years did not run, and Gallocher, therefore, never acquired a settlement in Glasgow. He consequently got this length towards a conclusion, that the paupers cannot found on the existence of any derivative settlement in their persons, as the wife and daughter of Gallocher, in the parishes either of Barony or Glasgow. The third question is, What was the parish liable in the main tenance of the pauper widow after Gallocher's death, it not being disputed that she was legally chargeable from 10th Sep tember to 9th November, 1860? The answer to this questi is not attended with any difficulty. Gallocher being an Irishman by birth, and having died without any settlement in Sect land, the widow's maiden settlement revived, and that was in Greenock, the parish of her birth. This was authoritatively settled by the case of Hay v. Skene, 13th June, 1850, in which it was found that where an Englishman, who had no settle ment in Scotland, deserted his wife, a Scotchwoman, the parist of her birth settlement was bound to support her, and this was a decision a fortiori of the present case, where the chargeability arose from the death, and not from the simple deser tion, of the husband. The authority of the above decision remains unshaken by the subsequent case of M'Crorie, in which all that was found was, that no claim of relief lay agains the parish of a lunatic wife's birth, where there had been desertion by the husband, who was an able-bodied man re siding in Scotland, and who was subsequently to be removed to Ireland, where he was born, if he became chargeable as a pauper by himself or through his family. In the very recen case of Carmichael, 28th Feb., 1863, (Poor Law Magazine. vol. v., p. 385) decided by the whole Court, the Lord-Pre sident, and almost every one of the other Judges, with the single exception of the Justice-Clerk, took occasion to declar emphatically that the soundness of the decision in the case Hay was not to be called in question, and that its authority was in no way affected by M'Crorie, or any subsequent de cision. The general rule of course, is that if the bust has a settlement in Scotland at the time of his death, wheth residential or by birth, it is taken up by the widow (Ha Thomson, 23d June, 1854, and Robertson, 12th Dec., 1854 But where the husband is not a Scotchman, and has no settl ment in Scotland at his death, there is no alternative but throw the widow back on the parish of her own maiden setti ment, seeing that she can have no claim against any e Scotch parish, and that there is no longer any means, sta tory or otherwise, of removing her from her own country that of her deceased husband. The fourth and last question which is, Whether the pauper, Annie Gallocher, should b maintained by the parish of her own birth or that of b

sup

mother, appears at first sight to be attended with more nicety, but upon a little consideration it will be found to admit of only one answer. It may be held to be settled by the cases of Gibson, June 10, 1854, and Carmichael, above referred to, that on the death of a father having no settlement, pupil children follow the settlement of the mother. Yet, it is well worthy of observation, that in the latter of these two cases, the two heads of the Court, the Lord-President and Lord Justice-Clerk, as also Lord Curriehill-who were all in the minority-took occasion to state very decidedly that they knew of no case sanctioning the doctrine that a settlement could be inherited even by a child in pupilarity from the mother? and Lord Curriehill declared his opinion to be, that it was "not the law of Scotland" that a settlement could be so derived. It is not necessary, however, to go into this point in the present case. The pauper, Annie Gallocher, was not in pupilarity, and was not even in minority, but had attained majority when she became chargeable to the pursuer's parish. It was ably contended for Glasgow that this did not affect the authority of the cases of Gibson and Carmichael as precedents, because the pauper had been nearly blind from her birth and never capable of earning her own support, and was, therefore, in pari casu with a pupil child, or lunatic, not sui juris, or forisfamiliated. But, in the first place, it has never been decided that a lunatic is incapable after the age of puberty of having a settlement of his own. On the contrary, it was held in Thomson, July 19, 1850, in conformity with the opinion of a large majority of the whole Judges, that the burden of porting a pauper lunatic, who was just sixteen years of age when he first became chargeable, and whose father was alive, with no settlement but in the parish of his birth, fell upon the parish of the lunatic's birth, and not upon that of his father; and, in the next place, there is a very great difference between lunacy and blindness. There is nothing to prevent a blind person being as much sui juris as a person not blind. Accordingly, in Hay v. Ferguson, 17th January, 1852, a woman wholly blind was found to have acquired a residential settlement in her own right, and to be subject to the same rules as other parties claiming parochial relief. It is in evidence that Annie Gallocher was placed by certain charitable individuals in the Blind Asylum from February, 1857, to February, 1858, and that when there she was not incapable of doing anything towards her own support, but did some work, and was only partially blind. She was then eighteen years of age, and at her father's death she was twenty-one. She had, no doubt, resided mostly in her father's house, but she had been in the eye of the law sui juris for a good many years before his death, and she was effectually emancipated and forisfamiliated by that event, if she had not been so ner. There is no question here of any settlement derived or inherited from the father, he having had none, and in such circumstances there is no principle, either in law or equity, for throwing the burden of a pauper of full age on her other's birth parish instead of her own. The very recent Bad well-considered judgment of the whole Court in Craig, 16th July, 1863 (Poor Law Magazine, vol. vi., p. 9), finally Legatives such a proposition. In that case, a lad about sixteen Fears of age, who had lived with his father, who had no residential settlement, till his father's death, and continued to live with his mother for two years more, having become Largeable as a pauper, was found to have his settlement in Le parish of his own birth, and not in that of the settlement either his father or mother. The general and important etrine which was affirmed in that case was, that where a nor pubes, that is, a female past twelve, and a male past teen, years of age, whose father is dead, having had no dential settlement, became an object of parochial relief, it the parish of the pauper's own birth alone that is liable in sport. The Lord Justice-Clerk, with whom the majority curred, said--"The survivance of the pauper's mother, the fact that he lived in family with her till he was teen years of age, is urged as a reason why he should not pend on the parish of his own birth for a settlement, but ald rather be a burden on that parish of settlement which it and he originally derived from her husband and his sher. This argument seems to me to be founded on a -conception of the legal relation subsisting between a wowed mother and her children in puberty. The mother ver possesses any authority of the same kind with the patria When the child attains the age of puberty legal authority of the mother over the child is at an end."

|-states.

In like manner, Lord Barcaple, with whom the Lord-Presi dent expressed his concurrence, said "If a child who has reached the age of puberty, and whose father is dead, becomes, through infirmity, incapable of supporting himself, he is by law entitled to parochial relief, not in respect of the condition of the head of the family, for there is none, nor of the family in the only sense in which it continues to exist, but in respect of his own individual disability." The case of Annie Gallocher is in all respects a fortiori of that of Craig; and it is impossible, in the face of the above authorities, to avoid coming to the conclusion that her maintenance as a pauper rests with the city parish of Glasgow, being the parish of her own birth, and the only parish in which she possesses a settle| ment.

This was appealed by Glasgow and Greenock, and after a hearing the Sheriff pronounced the following judg

ment:

Having heard parties' procurators under the appeals upon the Interlocutor appealed against, and having made avizandum, and considered the proof, and whole process, Finds that the parties appealing against the Interlocutor are the parishes of Glasgow and Greenock only, the other parishes of Govan and Barony having both acquiesced in it: Finds it admitted by all parties that the findings in point of fact, contained in the Interlocutor under review, are well founded and correct in all points: Finds that, as the deceased John Gallocher, the husband of the pauper, Rebecca Darroch, or Gallocher, and father of the other pauper, Annie Gallocher, resided only after March, 1856, for a period of four years and five or six months in the city parish of Glasgow, acquired no residental settlement in that parish either for himself, his wife, or daughter, and having left the parish of Barony sometime in 1855, and never having returned to that parish before his death, in 1860, lost his settlement in said parish: Finds that the said John Gallocher had thus no residential settlement in Scotland at the time of his death: Finds, therefore, that as regards his widow, the parish liable in relief to the pursuer for the aliment claimed on her account is that of her own birth settlement, being the parish of Greenock, her husband, who was an Irishman, having had no settlement whatever in Scotland at the time of his death: Finds, as regards the pauper Annie Gallocher, the daughter, who was nearly blind from her birth, and wholly unable to earn anything for her own subsistence, though she could do a little work at the Blind Asylum in Glasgow, and who was upwards of twentyone years of age at the time of her receiving the parochial aid claimed on her account, that she fell as a burden not on the parish of her mother's birth settlement, but on the parish of her own birth, rationi originis, which is the city parish of Glasgow: Finds that in Carrick v. The Parish of Aberdeen, 28th February, 1853, it was found that an Englishman who had come to Scotland and got a daughter there, whom he afterwards deserted, the burden of supporting the child fell on the parish of the mother's birth, not the child's own birth: Finds that that was the case of a pauper child in pupilarity, and who was, therefore, a burden on her parents; but the present case is regarding the parish of settlement of a blind woman who is sui juris: Finds that in such a case the burden of supporting the incapable pauper falls on the parish of her own birth, in respect she was, ab origini, incapable of acquiring an industrial residence elsewhere; and not having acquired, or been capable of acquiring, an industrial settlement in any other parish through her parents, or either of them, she remains chargeable on the parish of her own nativity: Finds that this has been decided by the Supreme Courts as the case of an incurable pauper lunatic who is major, falls as a burden not on his father's parish, but on his own native parish-Thomson, 19th July, 1850, Craig v. Greig, July, 1863, in which case the opinions of all the Judges were taken: Therefore adheres to the Interlocutor appealed against on all points, as well on the merits as on the several findings as to expenses, for the reasons stated by the Sheriff-Substitute, and dismisses both appeals.

For Pursuer-WM. BURNS. For City Parish-ROBT. THOMSON. For Barony Parish- MACLUCKIE. For Greenock Parish-T. G. WRIGHT.

20TH SEPTEMBER, 1864.

SHERIFF COURT, ROSS AND CROMARTY—

DINGWALL.

(SHERIFFS COOK AND CRAWFORD HILL)

TAYLOR AND OTHERS v. FINLAY MACANDIE. Landlord and Tenant-Removing-Act of Sederunt, 1756.-A farm servant, occupying a dwelling-house given to him as part of his wages, is bound to remove at the termination of his period of service without warning given him as if he were a tenant. Such a servant is not

a tenant.

THE defender was a ploughman to James Taylor, farmer, Nigg (who was under voluntary trust), and as such occupied a dwelling-house on the farm. His engagement was from Whitsunday, 1863, to Whitsunday, 1864. He was duly warned that his engagement as ploughman would cease at Whitsunday, 1864. The respondent entered appearance, and pleaded that he was entitled to forty days' warning to remove from the dwelling-house. He also objected to the pursuers' title.

After a hearing, the Sheriff-Substitute pronounced the following Interlocutor:

The Sheriff-Substitute having heard parties' procurators on the petition and minute of defence, made avizandum therewith, and considered the same, for the reasons given in the subjoined Note, repels the defences, and grants warrant of ejectment as craved: Finds the petitioners entitled to expenses, allows an account thereof to be lodged, and remits to the auditor of Court to tax the same and report, and decerns.

NOTE. By the trust deed executed by James Taylor in favour of the petitioners in 1863, of which a certified copy is in process, the farm of Nigg, of which he was lessee, was, inter alia, conveyed to the petitioners, and they were invested with all the powers with regard to the management thereof, which he himself, as lessee, had possessed. In these of course is embraced the power of engaging and dismissing the servants on the farm, and there cannot be the shadow of a doubt that the petitioners were entitled to say to the respondent that his services as a farm servant would no longer be required, and that he must remove from his house, which only, as a servant on the farm, he had been allowed to occupy. There is equally little doubt as to their title to bring the present action to eject him, on his refusal voluntarily to remove from it.

But if the petitioners' title be good, there seems to the Sheriff-Substitute to be an end of the defences. For the third

ground of defence, if it be meant as a denial of the allegation in the petition that the petitioners gave due and timeous warning to the respondent that his services would not be required beyond the term of Whitsunday," seems to the SheriffSubstitute to be quite irrelevant, and to proceed from a confounding of two things which are entirely different, viz., the forty days' warning required to be given to agricultural servants of the termination of their engagement. Failure to give the former might entitle a tenant to continue his tenantry on the ground of tacit relocation. But the respondent's position is not that of a tenant with a lease. His occupation of the house is just part of his wages as farm servant, and must cease like any other wages as soon as he ceases to act in that capacity. He may indeed be entitled to forty days' warning that his services are to terminate. But his master's failure to give that warning would not entitle the respondent to continue to occupy the house, any more than it would entitle him to insist on acting for another year as farm servant. It would only give him a claim for wages or damages, as if he had been improperly dismissed.

If the third ground of defence be meant as a denial, not of the petitioners having given timeous warning, but only of their right to do so, it has already been disposed of by the observation with regard to the petitioners' right.

As to the second ground of defence, it is enough to say that as the respondent is now, he alleges, James Taylor's servant,

he is not entitled to occupy a house which belongs, not to James Taylor, but to the petitioners as trustees for his credi

tors.

The Sheriff Substitute being of opinion that, although no warning was given, that fact would be no defence against the present action of ejection, it is unnecessary to have any proof as to whether such warning was given or not.

The defender appealed, but the Sheriff adhered. Act. MUNRO & M'LEAY, Tain. Alt. WM. MOFFAT, Dingwall

24TH SEPTEMBER, 1864.

SHERIFF COURT, LANARKSHIRE-HAMILTON. (SHERIFFS SIR A. ALISON AND VEITCH.)

Sale

ROBERT ALLAN v. THOMAS BROWN. Delivery-Moveables-Interdict.-Circumstances in which moveables sold held to have been effectu ally delivered, so as to protect the purchaser against a poinder.

THIS was an action of interdict raised at the instance of Robert Allan, horse-dealer and contractor in Glasgow, against Thomas Brown, merchant, in Strathaven, craving Brown be interdicted from selling horses, carts, and harness, purchased by him from James Hamilton, road surveyor, Strathaven, and of which he had obtained delivery. The sale sought to be interdicted proceeded under a small debt decree at the instance of Brown against Hamilton. Interim interdict was granted.

The defence stated by Brown was that no sale of the horses, carts, and harness had taken place between Allan and Hamilton; that no delivery had taken place; and that the sale and delivery was a collusive and fraudulent transaction, for the purpose of defeating the rights of Hamilton's creditors in general, and Brown in particular.

Parties were allowed a proof of their respective averments, and proof was led for both parties. On 24th March last the Sheriff-Substitute, after having heard parties' procurators on the proof and whole case, gave effect to the defence.

The petitioner appealed, and parties' procurator having been heard, the Sheriff pronounced the following judgment:

Having heard parties' procurators at great length under th pursuer's appeal upon the Interlocutor appealed against, an having made avizandum with the debate, and advised th record, proof adduced, and whole process, Finds that this i an action concluding for interdict against a threatened sale certain horses and carts belonging to the pursuer under poinding executed upon a small debt decree obtained at th instance of the defender against a person named Ham ton, and also for delivery of the horses and carts to th petitioner, and for expenses: Finds that the petitioner allege that he purchased the horses and carts in question fro Hamilton on 28th June, 1863, at the price of £37; th he paid £15 to account of the price the same day, and balance, being £22, on the 6th July following, and receipts for both sums from Hamilton; that on the day lowing the sale, the petitioner sent his servant for the hors and carts, and got delivery of them at Strathaven, the pist of the sale; that Hamilton, having a contract at Strathave under which the horses and carts were required, resigned contract on the 4th July to the principal contractor, and petitioner was on the 6th July taken in place of Hamilton the completion of the contract at which the horses w worked from that date: Finds it alleged that the defender,