Scottish Court of Session Decisions

In this action Grant sued Mr Yuill, farmer, Newlands, for the sum of £12 per annum, as aliment for an illegitimate child of the pursuer and defender, until said child attained the age of fourteen years complete. The nature of the action and of the defence sufficiently appear from the following interlocutor and note of the Lord Ordinary:—

“25 th November 1871.—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process, finds that the defender has made a reasonable offer to take charge of and educate the pursuer's child, who is now ten years of age; therefore sustains the defences, assoilzies the defender from the conclusions of the action, and decerns; finds him entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the Auditor to tax and report.

Note.—The Lord Ordinary, having regard to the position of the leading witnesses examined for the defender, and to the manner in which they gave their evidence, has seen no reason to doubt that the offer made by him to aliment and educate the pursuer's child, under the care of his sister, who is ready to undertake the charge in her own house, was made in bona fide.

But the main difficulty the Lord Ordinary has felt in dealing with the case arises from the fact that the defender for some time denied the paternity of the child; and that appears to have been laid down in the case of Keay, Feb. 19, 1825, 3 S., p. 561, that in such a case the defender could not discharge himself of his obligation to aliment a child by offering to take the custody of it. And if that decision is to be held as laying down a general rule, that in all cases where a defender has denied the paternity, and has only paid aliment under force of a decree in a defended action, he is to be precluded from at any time thereafter pleading his readiness to take the custody of the child, as a defence to a claim for continued aliment after the child has arrived at seven or ten years of age, as the case may be,—the present defender is in that position. The Lord Ordinary, however, has been unable so to read that decision. Because the report shows that, at the time the decision was pronounced, the defender was judicially denying the paternity, and the opinion of the Court appears to have proceeded upon that circumstance, as it bears that the defender was not entitled to the custody ‘while,’ and not because he had at one time denied the paternity.

In the present case, on the other hand, the defender judicially admits the paternity, and if the offer of the defender had been to take the child into his own house, as in the case of Kay, June 14, 1826, 4 Shaw, p. 706; Corrie, Feb. 22, 1860; and in the older case of Ballantine, Feb. 22, 1803, Hume, p. 424, no objection could, it is thought, have been made to the proposal. The intention, however, of the defender is not to take the child into his own house, but to place her under the care of his sister, a widow, resident on a farm in the country, who has agreed with him to aliment and educate the child, and the question raised is, whether that is a proper fulfilment of the defender's obligation. Now, having regard to the fact that the defender is unmarried, and has no female relative resident in his house, it appears to the Lord Ordinary that this is a fair and reasonable arrangement, for the child in question has never resided with the pursuer, and has for the last six or seven years been placed by her under the charge of her sister, where the pursuer occasionally sees her; and as the period has now arrived when the putative father is entitled to discharge himself of his liability, as explained by

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Lord Cowan in his opinion in the case of Corrie, by an offer either to take the child into his own house, or to make other arrangements for its aliment, it appears to the Lord Ordinary that the proposed arrangement for the aliment of the pursuer's child is one which, in the circumstances, he would not be warranted in refusing to give effect to.”

Yuill appealed.