Scottish Court of Session Decisions

In February 1881 Mrs Jessie Adam or Hay brought an action of separation and aliment against her husband James Hay, in which Lord Adam issued an interlocutor granting separation, and aliment at the rate of £40 per annum, and reserving to either party to apply to the Court for any further or other orders which might become necessary. On the 29th of March following Mrs Hay gave birth to a child, and in July she presented a petition in the Sheriff Court of Perthshire at Dunblane praying the Court “to grant a decree ordaining the defender to pay to the pursuer (1) the sum of £10 stg. of inlying expenses in connection with the birth of the said child, with interest thereon at the rate of 5 per cent. from 29th March 1881 till payment; and (2) the sum of £12 per annum for the period of ten years from said 29th March 1881 as ordinary aliment for said child.”

The defender pleaded—That the action was incompetent, on the ground that it was only under the Court of Session action of separation and aliment already raised at the pursuer's instance, and the reservation contained in the Lord Ordinary's decree which followed thereon, that the pursuer's present claims could now be competently made.

The Sheriff-Substitute ( Grahame) repelled this plea, and held that not only was it competent to the wife to bring an action for inlying expenses in the Sheriff Court, but that this was the only course by which her claims could be enforced, as the alimentary conclusions of the Court of Session action were limited to the personal aliment of the pursuer. The Sheriff ( Macdonald) adhered to this judgment, and on the 28th October 1881 the Sheriff-Substitute issued the following interlocutor:—Finds in point of fact that the pursuer gave birth on or about 29th March 1881 to a child of which the defender must be held to be the father: Finds in point of law that the pursuer's inlying expenses and the aliment of said child fall to be paid by defender; fixes the amount of the pursuer's inlying expenses at £4 with interest, as craved in the prayer of the petition, and the amount of aliment for said child at £12 per annum, with interest as craved.

Against this interlocutor the defender appealed to the Court of Session, and argued—Such an action in the Sheriff Court was without precedent and incompetent—Dove Wilson's Sheriff Court Practice, p. 346; M'Donald v. M'Donald, May 25, 1875, 2 R. 705. The Sheriff was wrong in holding that there was no difference in a question of his jurisdiction between an ordinary case of filiation and the claim of a married woman for the aliment of her children— Corrie v. Adair, 22 D. 897. The father might claim the custody of the child before the ten years were out— per Lord Kinloch in Nicolson v. Nicolson, July 20, 1869, 7 Macph. 1118; Bourne v. Bourne, December 8, 1880 (unreported); Lang v. Lang, January 30, 1869, 7 Macph. 445.

The pursuer argued—In the circumstances the action was competent— Jackson v. Jackson March 3, 1825, 3 S. 610, 11 Geo. IV. and 1 Will. IV. c. 69, sec. 32; 1 Sheriff Court Reports, p. 154. Where a consistorial question did not arise, the Sheriff could give aliment to a wife—Fraser, Parent and Child, p. 117. No such question arose here, because separation had been granted to the wife, and therefore the action was competent.

At advising—