A claim for bygone aliment of a bastard child, made by the mother against the father, found to fall under the triennial prescription.
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Agnes Forsyth bore to Simpson a bastard child, of whom she had the custody during his childhood. When he was about seventeen years of age, she brought an action against Simpson for payment of a sum of money, corresponding to an yearly allowance for aliment to the child, while he was maintained by her; she having alleged, That little or nothing had been paid on that account by Simpson. To this claim he objected the triennial prescription, and
Pleaded; By the statute 1579, cap. 83. it is declared, “That all actions of debt for house-mails, mens ordinaries, servants fees, merchants accounts, and other the like debts, that are not founded on written obligations, be pursued within three years, otherwise the creditor shall have no action, except he either prove by writ or by oath of his party.” Claims for aliment being comprehended under this statute, it is plain that the present one has suffered this prescription. It is true, that it is made by the mother, and not by a stranger, which however is of no consequence, because in either case the nature of the debt is the same. Nor is the decision Paterson contra Cochrane, No 275. p. 11080, of a contrary tendency; for there the father having owned the debt, no room was left for prescription.
Answered; If the defender had granted to the pursuer a written obligation for payment of this alimentary debt, then, by the express terms of the statute, the prescription could not have applied to the case. Now, as the law itself had conferred on the pursuer the character of creditor, on account of aliment furnished by her during the legal period of her custody of the child, any writing to that effect would have been absolutely superfluous and nugatory. But still, as has been shewn, the prescription would have been excluded; and as this consequence could not be owing to the superfluous writing, it seems to follow almost demonstrably, that it arises from the nature of the case; or, in other words, that the triennial prescription is not applicable to a claim like the present, made by the mother of a bastard against the father.
The Lord Ordinary “sustained the defence founded on the triennial prescription.”
And, on advising a reclaiming petition and answers,
The Lords adhered to the interlocutor of the Lord Ordinary.
Lord Ordinary, Dunsinnan.Act. Steuart.Alt. G. Ferguson.Clerk, Mitchelson.
Fol. Dic. v. 4. p. 105. Fac. Col. No 164. p. 334.
