Scottish Court of Session Decisions

In this case James Kerr, residing at 48 Shellgate Road, Clapham Junction, sued Mrs Emilia M'Millan Kerr or Moody, and her husband James Moody, teacher at Dumfries, for payment of the sum of £154, 17s. 3 1 2d. sterling, with interest from 6th March 1868 till payment.

The circumstances in which the claim was made were as follows:—The late Archibald Kerr, brother of the pursuer, who was a merchant in Lisbon, Portugal, died there on 9th October 1857. His wife also died there on 21st October of the same year. They were survived by six children, of whom the female defender was the eldest.

The pursuer went to Lisbon on his brother's death to look after and assist the children, and to attend to their interests. He was appointed by the courts at Lisbon their curator and guardian, with full powers to administer their father's estate, and a family council was appointed to consult and advise with him in that capacity. The deceased's estate was realised, and invested in securities in Lisbon. It did not exceed £1500 sterling, according to the pursuer's averment. The pursuer brought his brother's children home to Scotland with him, and they lived in family with him at Glasgow for several years. The pursuer averred that the income derived from his brother's estate was insufficient for the proper education and maintenance of the children. The amount sued for was the sums paid by the pursuer on behalf of the defender in excess of her share of the income of her father's estate received by him, and a sum of £60, 6s. advanced to her in 1868 to procure a marriage outfit. The pursuer further states that all the children, with the exception of the defender, had settled with him for his advances on their behalf.

The defenders denied that those sums were due. They averred that Mrs Brodie's share of income was sufficient to meet all the expenses incurred by the pursuer on her account, that it was never contemplated that a claim was afterwards to be made for alleged advances, and that no intimation of such a claim had been made till shortly before the raising of the action. In particular, they averred that a sum of £295 had

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been received by the pursuer from the deceased's estate, which he had invested for himself in business, and for which he had failed to account, and that if that sum were charged to the pursuer's debit in his account with the family, there would, on a proper accounting, be found to be a balance due from him to the defenders. The pursuer in answer to this averment admitted having received the sum of £295 in 1859, and in deducting the defender's share thereof from the sum sued for, he restricted his claim to £105, 13s. 9 1 2d. He further offered, under reservation of his pleas, to accept the sum of £50 in full of all his claims against the defenders.

In March 1870 the pursuer's estates were sequestrated, and in September of that year he was discharged on a composition of Is. 6d. per pound. In the state of affairs given up by him under the Bankruptcy Act he did not include as an asset any claim for his alleged outlays or expenditure upon the children.

The Lord Ordinary, after proof, pronounced the following interlocutor, dated 10th December 1875:—

“Finds it not proved that the income of the property belonging to the defender Mrs Moody and the other children of her father, the late Archibald Kerr, was insufficient for her and their maintenance and education while under the guardianship of the pursuer, or that the pursuer advanced from his own monies sums which were required for educating and maintaining and setting out in life the said defender: Therefore sustains the defences, assoilzies the defenders, and decerns: Finds the defenders entitled to expenses, of which allows an account to be given, and remits that account when lodged to the Auditor for his taxation and report.

Note.—The pursuer is the uncle of the defender Mrs Moody, who is one of six children of his brother, the late Archibald Kerr, who were left orphans in Lisbon at his death in October 1857. The pursuer went to Lisbon on hearing of his brother's death, assisted in realising the estate, and in the course of the following year he brought all the children to this country. From the first the defender and one of her sisters lived with the pursuer; the other children lived for a time with their grandfather and grandmother at Kilfinnan, but ultimately all came to him, and it is abundantly proved that he shewed all of them all kindness, and brought them up in every way as well as if they had been his own children. The Lord Ordinary thinks that a little more consideration for what he did for his brother's family would not have been unnatural, and had that been shewn the present action never would have been instituted.

But the decision of this case cannot be influenced by sentiment. The result has been put to the test of law, and accordingly by law must the question in issue be determined.

The income of the family was not over £120, which in these days seems a small sum for boarding, clothing, and educating six children. But that it was not much, if at all, under what was required, is shewn by the fact that the pursuer was willing to take £50 for what he says he had advanced on the defender's account during the period of more than four years she resided with him. Has any insufficiency been proved, as was necessary? This is the question on which the Lord Ordinary has given judgment.

There are no vouchers, no accounts were kept; opinions of what witnesses thought reasonable or requisite are all that have been brought forward. This, in any circumstances, would have been unsatisfactory evidence; but when it is proved, as it was to-day, that the pursuer in 1870 deponed in the course of his examination as a sequestrated bankrupt that nothing was due to him by his brother's family, and that the income derived from their property was sufficient for their support, there is, so for as the Lord Ordinary can see, no escape from the conclusion that the alleged debt sued for cannot be held to be established.”

The pursuer reclaimed.

At advising—