REPORTS-1924, SCOTS LAW TIMES. 809 President Inglis, p. 437). So far as I am con- Parish Council of November 20, 1924. time when his wife received parochial relief merely because her husband is able-bodied and 1st Div. in Glasgow, he was incapable of having a because it cannot be said that he deserted her— parochial settlement in Scotland; or, alter-the actual fact being that she left the conjugal Council of natively, that his settlement in Rutherglen was home temporarily and with her husband's Glasgow v. "suspended," and that it remains ineffective consent. According to the argument addressed Parish unless and until he returns to Scotland and to us on behalf of Rutherglen it is irrelevant Rutherbecomes chargeable as a pauper. No authority to point to the fact that the home in question glen. was cited and no legal principle was referred was on the other side of the Atlantic; that the to in support of either of these propositions, and family arrangement for the wife's maintenance they are both, in my opinion, unsound. It is in Scotland in the house of her parents proved unnecessary to say more than that quod gratis unworkable; and that for more than two years asseritur gratis negatur. after she became a burden de facto upon the The next point raised by Rutherglen is that parish of Glasgow, he made no provision for the husband, being admittedly able-bodied, his her maintenance in Scotland or for removing wife cannot be a proper object of parochial her to and maintaining her in Canada. I relief. No one disputes that this contention cannot regard these topics as irrelevant in view correctly states what may be called the general of the authorities which I have cited, to which and normal rule of the law of Scotland. This I may add the dicta in Beattie v. Adamson (5 M. rule, however, has its exceptions; for example, 47, per Lord Justice-Clerk Inglis, p. 52), and if the law itself makes it impossible for a working Dinwoodie v. Graham (8 M. 436, per Lord man to support his wife out of his wages by removing the wife to a lunatic asylum (Palmer v. Russell, 1871, 10 M. 185), or the husband to penal servitude (Leith Parish Council v. Aberdeen Parish Council, 1910 S.C. 404). Again, it has long been recognised that if a husband, being able-bodied, has "deserted his family and absconded (Adamson v. Barbour, 1 Macq. 376, per Lord Cranworth, p. 379) his dependants may be proper objects of parochial relief. A man may, however, desert his wife even although his address is known, and the Act of 1845 recognises (section 80) that a husband or father who deserts or neglects to maintain his wife or children may make them chargeable as proper objects of parochial relief. It was laid down so long ago as 1851 in Hay v. Doonan (13 D. 1223, p. 1226), that a wife who had been deserted and left destitute might be entitled to parochial relief notwithstanding that the husband was ablebodied. In Anderson v. Paterson (1878, 5 R. 904) a pupil was held to be a proper object of parochial relief although the father who refused to take and maintain it was able-bodied and resident at a short distance from the parish which gave the relief. This case is instructive because the opinions of the judges indicate that questions of the kind raised in this special case are delicate and difficult, and that the answer which ought to be given to them may vary according to the circumstances. Obviously they are mixed questions of law and fact. The parties, however, have chosen to present the question to us as one of abstract law, and it was so argued. I shall therefore confine myself to the only question which is properly before us, viz. whether a married woman, who is in fact destitute and unable to maintain herself and her children, is necessarily incapable CASE B.-Mrs Agnes Stark or Steel. So far as appears, the parish of Glasgow never The dicta of the CASE C.-Mrs Susanna Jamieson or In regard to this case I concur in what your CASE D.-Mrs Martha Evans or Brown. of being a proper object of parochial relief whose marriage has been dissolved by the Parish Council of 1ST DIV. death of her husband should start her life as a widow with the settlement which belonged to Council of her immediately before her husband's death, Glasgow v. and it is not necessary to justify the rule Parish by an appeal to sentimental reasons which Ruther- do not apply to a marriage which has been glen. dissolved by divorce. No satisfactory reason occurs to me or was adduced by counsel why, as regards the settlement of a married woman whose marriage has been dissolved, importance should be attached to the cause which brought about the dissolution. The first question of law should be answered in the affirmative and the second in the negative. November 20, 1924. Lord Cullen.— CASE A.-Mrs Hannah Fallon or Dorran. I agree with your Lordships in the view that The other question raised is whether the wife 66 now is her present attitude of mind she has not, not deserted her in the ordinary sense and it is not said that he has done anything equivalent in the way of abandonment. On the facts stated I do not think it has been shewn that the wife was a proper object of parochial relief. CASE C.-Mrs Susanna Jamieson cr While it was open to the first parties to offer indoor relief to the mother and child together, they appear to me to have acted with a very reasonable discretion in taking in the child alone while the mother remained outside to work; and I do not know of any rule which disabled them from exercising such a discretion in the matter. I am accordingly of opinion that the first party's claim of recourse is well founded. CASE D.-Mrs Martha Evans or Brown. It is well settled that dissolution of a marriage through the death of the husband leaves the surviving wife with the settlement which she acquired through him by the marriage until something happens thereafter to cause her to lose it. In the case of dissolution of a marriage through divorce, while the consequences in various other respects are different from those ensuing on death, it appears to me that in this particular matter of poor law settlement the analogy with the case of death is close enough to make it fitting that the same rule should apply, in accordance with the contention of the first party. Lord Sands. CASE A.-Mrs Hannah Fallon or Dorran. As CASE B.-Mrs Agnes Stark or Steel. destitute is entitled to poor law relief. An ableBy the law of Scotland a person who is ,,bodied person is not entitled to such relief. it appeared to me in the course of the argument, in this case there was an underlying suggestion that the latter proposition is a qualification of the former. This suggestion is founded upon a misapprehension. The able-bodied person is denied relief, not because being able-bodied is an inherent disqualification, but because, in the eye of the law, an able-bodied man woman cannot be destitute as being unable to procure the means of subsistence. For reasons of public policy which the history of poor law relief, particularly in England, makes intelligible, a 'presumption has been established that if a person is able-bodied he or she can earn a livelihood and need not be destitute. Under the conditions of modern life this presumption CASE B.-Mrs Agnes Stark or Steel. or REPORTS-1924, SCOTS LAW TIMES. may not square with fact. But the law takes no account of this consideration. If a person has hands to work, that person can earn the means of subsistence by working, and he and his dependants are not proper objects of public relief. Having found an able-bodied person, the law postulates a person who is able and has the opportunity to maintain himself and his dependants by working. 66 811 Parish Council of Ruther 1924. of an able-bodied person. But mere abandon- 1ST DIV. ment may not in itself be sufficient to found the right. There must also, I am disposed to think, be an element of non-accessibility. I have Glasgow v. difficulty, for example, in holding that where Parish an able-bodied man has quarrelled with his Council of wife, sent her and her child back to her mother, glen. and gone into lodgings, the wife and child, if destitute, are entitled to poor relief although November 20, As regards dependants, however, this pre- the man refuses to take them back. In consumption is not absolute. Although it has sidering the matter of legal right to relief it is been found expedient for reasons of public necessary to postulate an application to a Court policy to make an absolute presumption that an of law. Now, if a wife were to come before the able-bodied person can maintain himself and his Sheriff of the Lothians claiming a right of relief dependants, the law has not been constrained on the narrative that she was not able-bodied, to make an absolute presumption that what the but was the wife of an able-bodied man resident able-bodied person is presumed to be able to in Edinburgh who had abandoned her, I much earn is in all circumstances available to his doubt if such an application could be enterdependants. This presumption, indeed, appears tained. I do not think that the position would to be absolute when the dependants are living be different if her averment was that her in family with the able-bodied person; but husband was in Glasgow. On the other hand, if they are not so living the presumption may, in my view, she might present a relevant case in certain circumstances, be redargued. When if her averment were that her husband was in the able-bodied person is in penal restraint America and had abandoned her. The view the dependants, if they have no other means to which authority seems to point is that in of subsistence, are proper objects of poor-law the general case the dependant of an ablerelief; so, too, as has been recognised, when bodied person who is resident at a known and the able-bodied person has "deserted" his reasonably accessible address in Scotland has dependants. But the word deserted " is no right to poor relief. ambulatory and it is here that difficulty arises. The difficulty which attaches to this view of The clear case is that of a husband or parent | the matter is that where there is abandonment who has disappeared and whose whereabouts | there is no constraint either of duty or affection is unknown. But there may also be cases to support the dependant if poor law relief be where the presumption that the resources, real or theoretical, of the able-bodied person are inmediately available to his dependants does not apply, although his whereabouts are known. In general, I think, and this is in accordance with the authorities, there must be an element of abandonment in such cases. That is perhaps a more satisfactory expression than desertion." The latter has a consistorial signification, and under consistorial law a husband may be in desertion though he maintains his wife and not be in desertion though he refuses to do Even the word abandonment is not wholly satisfactory if that word be used in a harsh sense. A widower, for example, may be in Australia and his child may be brought up by an aunt in Scotland who maintains it. The aunt dies and the child is destitute. It will take months to communicate with Australia. I have little doubt that this child is a proper object of parochial relief, although, until the father is communicated with and declines to support the child, it might be harsh to say that he had abandoned it. Subject, however, to this recognition of a possible suspense period or other very exceptional cases, in my view abandonment is an essential condition of a right to poor relief on the part of the dependant so. 66 refused, and legal compulsion is slow and un- In the view, however, which I take of the Parish November 20, 1924. 812 REPORTS-1924, SCOTS LAW TIMES. CASE C.-Mrs Susanna Jamieson or 1ST DIV. is, in the general case, a suitable object of poor no settlement. Settlement imports simply relief. As regards Case B, it is sufficient that liability of a parish to maintain a person Council of the dependant of an able-bodied person resident if that person falls into destitution. There Glasgow v. in Scotland is not in general entitled to poor can, it is suggested, be no such liability Parish relief. I do not think that upon the facts upon any parish in favour of a wife. If Council of stated there are in either case specialities which the husband is able-bodied there is no obligaRutherglen. may take the case out of the general rule. Ition to support the wife. If he be not am accordingly of opinion that in both cases the able-bodied, then it is he and not the wife questions stated should be answered in the who has a claim for relief for himself and his manner proposed by your Lordship in the chair. dependants. The wife is merged in the husband. She may be a persona as one to be counted in the measure of relief to be given to the husband, but she is not a persona as having any indeIn this case the contention is that the mother pendent right to relief. No doubt a widow on of the sick child should have been offered the the death of her husband retains her husband's poorhouse for herself and her child, and that settlement; but the somewhat sentimental accordingly the parish of settlement cannot reasons that have been indicated from the bench recover the expenditure in the maintenance in explanation of this rule suggest that the and treatment of the child. If the mother had considerations to which I have adverted have been offered and had accepted the poorhouse a certain logical cogency. As was pointed for herself and the child, the cost to the relieving out, however, in a recent case in this Division, parish would have been in excess of the present we are dealing here with a somewhat arbitrary claim. But the suggestion is that, with no branch of positive law. other alternative but to go into the poorhouse, the mother would have taken away her sick child without obtaining any relief for it. There are rules of our poor law which, though their operation may be harsh in a particular case, are salutary on the whole. But I am glad to be able to agree with your Lordship in the chair that there is no rule which dictates to parochial authorities such a course of action as the contention of the second party seems to require. CASE D.-Mrs Martha Evans or Brown. I am therefore of opinion that we must disregard logical subtleties on the one hand and sentimental considerations on the other. So proceeding, I think that we are thrown back upon the simple solution of the case to which I adverted at the outset. Up to the date of divorce the woman was a potential burden upon the parish of her husband's settlement, and that burden can be shifted only in one or other of several ways which the law has long recognised. I agree, therefore, with your Lordship in the chair as to the answer to be given to the questions stated. REPORTS-1924, SCOTS LAW TIMES. -Observed per the Lord Justice-Clerk and Lord son that the oral application was bad, in respect that the entry in the minutes of procedure was not signed by the accused or by his agent, but that the written application had been timeously made. 813 CIARY. Gray. 1924. outwith the five days allowed by the Act for making land) Act, 1908, the case must be applied for HIGH application-Objection that stated case incompetent within five days, and the application either COURT Hunter that the Court would not readily entertain written on the complaint and signed by the OF JUSTI such an objection in the circumstances stated, but appellant or his agent, or there must be a opinions reserved thereon-Opinion per Lord Ander- separate written request signed by the appellant Smith v. or his agent. There must, however, be writing in either case. The oral request made in the November 19, present case was not a compliance with the statutory terms. The written request made subsequently thereto was not timeously made, because, though posted on the 3rd, it was not received till the 5th May, and it was the latter date that determined whether the five days had expired or not. The present case was different, in the terms of the section founded on, from the similar cases under the Summary Prosecutions Appeals Act, 1875 (38 & 39 Vict. cap. 62), section 3, of Charleson v. Duffes (1881, 4 Coup. 470; 8 R. (J.) 34), and Thom v. Caledonian Railway Co. (1886, 1 White 248). Robert Smith, merchant, Buckie, was charged in the Police Court of the burgh of Buckie on a complaint at the instance of Malcolm Gray, Burgh Prosecutor, Buckie, under the Licensing (Scotland) Act, 1903, section 96. The magistrates convicted the accused, who obtained a stated case for the opinion of the High Court of Justiciary. The stated case set forth, inter alia : VIII. The order of the Court pronouncing sentence on the accused was dated 28th April 1924. Notice of appeal was intimated in writing by accused's agent to the clerk of Court by crave dated and posted at Banff, 3rd May 1924, which was delivered at Buckie, 5th May 1924. At the time of pronouncing sentence, the accused's agent orally asked the Court to state a case for the opinion of the High Court of Justiciary, and this request is entered in the minutes of procedure at the trial. The Questions submitted for the opinion of the Court were, inter alia: "1. Is this appeal competent in view of the provisions of the Summary Jurisdiction (Scotland) Act, 1908, section 61, and the Licensing (Scotland) Act, 1903, section 102 ? "2. In view of the fact that the minutes of procedure at the trial bear that the accused then asked the Court to state a case for the opinion of the High Court of Justiciary, is this appeal competent in the circumstances?" The Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), enacts: Section 61. Application to have a case stated shall be made at the time when judgment is given, or at any time within five days thereafter, and such application shall be signed by the appellant or his agent and either written on the complaint or lodged with the clerk of Court, and where the latter course is adopted the clerk of Court shall enter in the proceedings the date when said application is lodged, and shall thereupon intimate the appeal to the respondent. The case was heard before the High Court of Justiciary on 18th and 19th November 1924 when counsel were heard, inter alia, on the competency of the stated case. Argued for the Respondent: The stated case had not been timeously applied for. Under section 61 of the Summary Jurisdiction (Scot Argued for the Appellant: The stated case was competent. The question had been twice before the Court in the interpretation of an analogous section in the Summary Prosecutions Appeals Act, 1875, in the cases of Charleson v. Duffes and Thom v. Caledonian Railway Co. (cit., sup.), and similar objections had been overruled. Of two equally possible constructions the Court would prefer the one in favour ས of the accused. The section should read "such latter application," and accordingly On 19th November 1924 the Court affirmed the conviction and found it unnecessary to deal with the objections to the competency of the stated case. The Lord Justice-Clerk (Alness).-The appel- of section 96 of the Licensing (Scotland) Act, The question of the competency of the stated The principal question on the merits is the 6th: Whether the magistrates, on the facts |