Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Agnes Logan and her children
v.
Andrew Campbell

Date: 15 November 1757

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This case is reported by Kames, (Sel. Dec. No. 126; Mor. 3230, and in Fac. Coll. Mor. 3232.) The following is Lord Kilkerran's note upon the question which it involved.

“February 27, 1757.—A hearing in presence on this point, how far a man can on death-bed make rational provisions for his children, which may be thought not unreasonable; but after a series of decisions for the contrary, I thought, and said it would be a bold stroke to find so by a judgment. Lawyers were appointed for both sides. The Solicitor and Miller, Lockhart and Ferguson.

February 24, 1757.—Upon this hearing, the Lords found, agreeable to the opinion of all our lawyers, and the series of former decisions, that a father on death-bed could not make provision for his younger children. The children pled upon two grounds, 1st, The expediency and rationality of receding from the former decisions, where it had been so found. 2dly, As the Court could give an aliment, why not sustain provisions to that extent?

With respect to the first, it was thought neither in the power of the Court to recede from the former series of decisions, nor that it would be expedient were it in their power. 1st, Not in their power, as one branch of our law is our consuetudinary law, which is founded on the concurrent opinion of the writers on our law, and the current of decisions, which we can no more alter than we can alter a statute. True, we have in some cases receded from a course of decisions, but in all such cases, it has been where the former decisions have been found erroneous in point of principle, e. g. as in the case of Ramsay of Wilycleugh in 1738, where, contrary to former practice, we found that bygones on a debt whereon apprising had followed, to belong to the heir, though the current practice had been to give them to the executor, which was erroneous in point of principle, because an apprising is a disposition redeemable, and truly the lands come in place of the debt, after which there is no debt either principal or interest. The like in the decision, Bell of' Blackwoodhouse, where, contrary to former practice, we found that where a person having a personal right by disposition to lands, had conveyed that personal right to one, and afterwards to another, who obtained infeftment, the second was preferable on his infeftment, contrary to the former practice which had sustained the first conveyance, on the ground, that the granter who had only a personal right was denuded by the first disposition, which was plainly erroneous in point of principle.

3d, In the case of Easterogle, where, notwithstanding of three consecutive decisions, whereby it had been found that a charge on an adjudication excluded the terce, we, however, receded from that doctrine, and found it did not, and rightly, because the charge only concerns the competition among adjudgers themselves, and not between adjudgers and voluntary rights.

And, 4thly, The same may be said of our receding from the decisions that for some time sustained bills that bear annualrent. But there is no instance wherewe have receded from a series rerum similiter judicatarum, where these decisions were admitted to be agreeable to law; for that would be to alter law, which isonly competent to the legislature: so much for our power. But 2do, Were it in our power, we ought not, because if we should sustain such provision as rational, we behoved to do it on a principle that we are to sustain all rational acts; for provisions to children is but one instance of a rational act; and if the Lords shall go that length, then the ground of it may be understood, for it should coincide with the other cases above mentioned, where the Lords have receded from a series of decisions, as being erroneous in point of principle. But this will not be attempted, as it were to throw the law of death-bed out of our law-books. But fur ther, of all acts that can be called rational, the reason is strongest for not sustaining such provisions to children, as was the chief view of the law of death-bed to prevent the influence of wives over husbands and of the clergy, whereof there are instances even in our own day over people when in extremis. Vide Stair, p. 600. Nor is it any answer to this, that all is under the correction of this Court when irrational, as nothing is more to be avoided than such questions as render the Court arbitrary. Witness the late case of Mr. Craik and, now the subject of an appeal.

As to the second ground, that we may sustain provisions to the extent of a rational aliment, the answer is plain, that whatever we give must be alimentary from year to year, and no man can calculate what provision will correspond to an aliment; for it is erroneous to say that a child of ten years old can get an aliment till he is twenty-one, and it is easy to give a provision to answer that, for the child may die before he comes to nine years of age, whereby the aliment ceases, whereas a provision once given he will cut out the heir. We may also give an aliment to an unprovided wife, but still it must be alimentary. Who ever heard of giving her a sum of money to answer that?”