Scottish Court of Session Decisions

This was a question between the united parishes of Tingwall, Whiteness, and Weisdale, and the united parishes of Bressay, Burra, and Quarff, as to the settlement of a pauper lunatic named Williamson, formerly a fisherman in Shetland, the point at issue being whether the pauper had acquired a residential settlement in the parish of Tingwall.

After a proof, the Sheriff-substitute (Mure) found that the pauper had acquired a residential settlement in Tingwall, adding the following note, which sufficiently sets forth the facts on which the case depended:—“The present is a question of considerable importance to the two parishes concerned, and to Shetland generally. It is also one in which the result depends on several points, on which opposite doctrine may be quoted from the judgments of the Supreme Courts. If personal presence be the test of continuous residence, the interlocutor now given cannot be supported, nor can it be supported if the residence of the wife and family in a house within a parish will not in any circumstances preserve the husband's statutory residence there. For the affirmative of these propositions the very highest authority may be quoted. But, on the other hand, a recent judgment of the whole Court seems to place the construction of the words of the 76th section of the Poor Law Act on a different footing. Thomas Williamson was born in Havera, an island in the parish of Bressay, and in respect of his birth there that parish is sought to be made liable for the support of his wife and family. He followed the usual occupation of an ordinary Shetlander that of fisherman and sailor, and his life, in most respects except one, seems to resemble that of thousands of the male inhabitants of these islands. He seems to have had the seeds of insanity in his constitution, to have been naturally moody and passionate, and his work companions had to be careful not to contradict, but to humour him. But he was a good boatman, and appeared to know thoroughly and perform well the duties of a fisherman.

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Except after January 1862, and for a short time in 1852, it cannot be said that he was unable to direct his own affairs, or to perform all the ordinary duties which a man of his class should attend to. He married, in 1852, Catherine Laurenson, a woman residing with her father at Houlland in Tingwall, and the witness Walter Williamson says that on his marriage he meant to remove from Havera. His connection with Tingwall for some time after his marriage, and up to May 1855, was very slight; he was at first for a few months in a lunatic asylum, then at Houlland in Tingwall for nine months, then two months in Lerwick, and afterwards for seven months on a foreign voyage as a sailor, till September 1854. He spent the period from September 1854 till May 1855 at Havera, fishing, and at Houlland with his wife. But his residence during this period is not very definitely fixed. But from May 1855 till January 1862, his connection with Tingwall becomes more close. He spent the first nine months of that period fishing from Oxna and Scalloway both in Tingwall, living with his wife at Houlland; the next three months he was at Havera fishing, while his wife remained at Houlland, and he visited hex during that period. At Whitsunday 1856 a room was taken for himself, his wife and family, to reside in at Scalloway in Tingwall, and that became from that date till January 1862 the residence of his wife and family, and of himself when not absent in pursuit of his ordinary occupation. Fishing is prosecuted in the Shetland islands either by boats from stations on the coasts near the fishing grounds, to which stations the fishermen resort from their homes in various parishes during the fishing seasons, or by smacks on the banks at Faroe, &c. The important stations in Shetland are the Skerries, Stennis, and Fethaland: this man did not resort thither, but to the islands of Havera and Burra, both in Bressay. In the former his father lived, in the latter his brother, and with these persons he naturally spent the fishing seasons of the year. These two islands are not fishing stations in the same sense as those formerly mentioned; but it is abundantly clear that strangers go to them to make up the boats' crews of islanders, because these islands are good fishing stations. In this way, while the wife and family of Thomas Williamson were always in Scalloway, he was absent twice in each year from his home there for a period varying from two to four months each absence. During these absences he occasionaly visited Scalloway for the combined purposes of visiting his wife and transacting business. These visits, though rare, reduce the length of the absence, and keep up the link with his home. In the course of these residences at Scalloway he procured a boat to facilitate the possibility of his getting from Havera and Burra to Scalloway. He considered Scalloway his home. His children were born there. He took his provisions from Scalloway, and his wife got credit there on his account. The rent of the room at Scalloway was paid, as appears from the rental of the witness Charles Nicolson, from Williamson's share of the fish which his boat's crew obtained, and which were sold to Nicolson as fishmaster. One season he went to Faroe, and he was absent at London for two months, bringing home a fishing smack. But these absences do not seem to differ in their character from what is usual in the life of a Shetland fisherman, and more than once it is in evidence that his life was just like that of any other Shetland fisherman, and that other fishermen move about exactly as he did. One point in reference to his wife and family requires special notice. During the man's voyage to London bringing home the fishing-smack, his absence in consequence of bad weather seems to have been more prolonged than was expected, and his wife and children not having sufficient funds to continue in Scalloway, took refuge for some weeks in her father's house in Lerwick. At first sight this might seem sufficient to dislocate the connection with Scalloway, and to break the continuity of the residence in Tingwall. But on turning to Nicolson's rental-book, it appears that they were debited with the rent for the whole four quarters of that year, and that they retained their room in Scalloway during that absence. Their connection with it was not destroyed. Another point in reference to the wife may be noticed. The room, it is said, was let to her. This, in the opinion of the Sheriff-substitute, was a matter of no importance. It is clear that the rent of the room was paid out of funds forming part of the goods in communion. The man was liable for the rent, and it was the common home of himself and his family. But it is equally clear that of the whole five or six years and a half during which the man and his family were in Tingwall parish (according as the terminus a quo be reckoned from Whitsunday 1856 or May 1855), he himself was personally present only a small part of the time in the parish of Tingwall. He was probably not more than four or five months of each year actually resident in Scalloway. Can a man in such circumstances acquire residential settlement in a parish? The question is of general importance, and of extensive application in a fishing and seafaring population like Shetland. The words ‘continuous residence’ in the 76th section of the Poor Law Act, are, as is well known, open to construction. They have not been defined in the Act itself, and it has long been settled that they do not mean constant and uninterrupted residence. In the latest reported case, Hewat v. Hunter, July 6, 1866, 4 Macpherson 1033, Lord Justice-Clerk Inglis observed—‘It could never be meant that the Statute could be so construed as that a person could not be away in pursuit of his ordinary business.’ And in the same case Lord Cowan observed—‘In considering questions of this nature we must inquire whether the man was fixed and attached to some permanent place of abode which can be called his residence.’ Lord Neaves in the same case remarks, that the ‘occupancy of a dwelling-house by a man's wife and family may often be a material point in questions of residence.’ Lord President M'Neill, in the immediately preceding case of Hustings ( 8 P. L. Magazine, p. 336), thus stated his views—I do not think that personal presence is the sole test. ‘An important fact in deciding a case of this kind is the permanent character of the residence, as, for instance, if the person has been a householder during the disputed period.’ In the present case, the Sheriff-Substitute is of opinion that the absences were occasioned by Thomas Williamson following his ordinary occupation, and that he did so in the only way possible to him. While at Havera and Burra he was never on land except for the purpose of resting from the labours of the sea, and he could not be, in the whole circumstances of this case, beginning a new residence in these islands while his actual residence was elsewhere. Again, the absence of Thomas Williamson never had the character of a complete departure

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and separation from Scalloway. He never meant, when he left the place to fish, to sever the tie that existed between him and it. His absences were temporary, and he meant on each occasion to return to the common home of his wife and himself. He did return there always, and though his wife, from the insanity of her husband, looks back upon his life in Scalloway as more for her than for his sake, and with feelings that make her evidence not the most reliable in this case, it is clear that he considered Scalloway his home, and spoke of it as such to his fellow fishermen. Again, the absences of Thomas Williamson were incidental to his residence in Scalloway. He and his wife went there from the facility it afforded him of following his business, and of meeting his wife easily. But Scalloway, though a seaport, is too much inland for him to have fished from it during the spring and summer fishings at least, and he necessarily went elsewhere. If a fisherman in Shetland can acquire a settlement by residence at all, the events of Williamson's life, being similar to many others, should enable him to do so. In conclusion, the Sheriff-substitute thinks this judgment not only more consistent with principle, but more in accordance with policy, with reference to the social life of the people among whom he administers justice. He has often heard it said since he came to Shetland that the actual population exceeds by nearly ten thousand the number which appears in the census, and the reason given is that all the fishermen were astir and away from their homes at sea the night before the census was taken. Many of these were at stations out of their parishes. It would be a serious thing to say that none of these could acquire a settlement by residence. This case is in some respects peculiar and special, but its general features will be found in the lives of all Shetlanders. In regard to the alleged admission by Bressay of liability, the Sheriff-Substitute thinks that there was a good deal of vacillation on the part of the parochial board of that parish, but while there was a payment of a certain sum of money, there was no express admission of liability, and it was speedily followed by a repudiation. In a parish a new rate may be imposed every year, the ratepayers may change, and the whole members of a parochial board may be different each succeeding year. In such circumstances, it seems a favourable case for sustaining the plea of error. Still it must be error in point of fact, and the Sheriff-Substitute thinks that the effect of the evidence must be held to be that the case, though investigated by the Bressay Board, was not sufficiently so, and that they were entitled to resile from an implied admission prematurely and incautiously made.”

The Sheriff (Gifford) adhered.

The inspector of poor of the united parishes of Tingwall, Whiteness, and Weisdale advocated.

Clark and Cheyne for advocator.

Millar and A. Moncrieff for respondent.

At advising—