Scottish Court of Session Decisions

This was an action in the Sheriff Court of Caithness at Wick, at the instance of Isabella Dunnett, residing at Murkle, in the parish of Olrig, Caithness, against John Campbell, farmer, Claredon, in the parish of Thurso, Caithness, for payment of aliment for an illegitimate child, of which she alleged the defender was the father, at the rate of

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£4 per annum from the date of the child's birth, 30th October 1867, until he should attain the age of sixteen or be able to earn his own subsistence, and also for payment of £1, 10s. as inlying charges. The claim was made under deduction of £10 paid to account by the defender on 8th July 1880.

The child was born on 30th October 1867, and the pursuer averred that he had been all along in a weak state of health, unable to earn his own maintenance, and that he had been and still was supported by the pursuer. The defender admitted the paternity, but made these averments in defence, viz.—After the birth of the child the pursuer agreed not to demand aliment from the defender until he should be able to pay her, as he was then a farm-labourer, and in poor circumstances. When the child reached the age of seven the defender offered to take him, and made a demand to this effect. The pursuer, however, refused to give him up, still repeating that she would not claim aliment from the pursuer until he should be able to pay her. In 1878 the defender offered the pursuer the aliment for which he was liable, but the pursuer refused to accept it, stating that as the defender had enough to do with his money at that time she would not insist upon payment, but would give him notice when she required it. Early in 1880 the pursuer through a law-agent made a demand for the aliment of the child, and the defender subsequently offered £30, payable in three equal instalments during the years 1880, 1881, and 1882, for a settlement of her claim. The pursuer accepted this offer in full compromise, settlement, and discharge of her whole claims against the defender in respect of the child, and the defender paid to her, also through her law-agent, the first instalment of £10 in or about the month of July 1880. Shortly after March 1881 the pursuer made a demand through another law-agent for a larger amount of aliment, ignoring the agreement before mentioned. The defender offered to carry through the arrangement, but the pursuer would not accept payment under the same.

The proof, which was taken by the Sheriff-Substitute, was to this effect—Nothing was said as to aliment until the 27th December 1869, when the defender called on the pursuer. On that occasion the pursuer's father wrote out the following line in duplicate, the pursuer and defender signing the same—“Isabella Dunnett is agreeable to take from John Campbell, Claredon, any sum of money that he can give in support of his child from this date.” With regard to this interview the defender deponed—“After birth of child had talk about child. I said I had no money. They told me they wanted no money from me, and would wait till I could pay, and that they would not pursue me. 14 [ i.e., the writing above quoted] was written by pursuer's father, and is signed by me. Nothing was paid then.” In 1878 the defender again called on pursuer. With regard to this visit he deponed—“Before entering on my farm I got money and cheque from my father to settle the aliment in full. I went to her father's house, and saw pursuer and her father and mother. They refused to take the money, saying that as I was entering on a farm they would take nothing from me then, and would not pursue me. Her father said he would give me a receipt for what money I gave. I wanted them to name the sum they wanted. They would not name any, and refused money. I paid nothing. They said they would give me notice when they wanted money.” He further deponed that before this last interview he had offered to the pursuer, her father, and mother, to take the child, but they refused to give it. The defender's father also stated that he had offered to take the child. These statement were denied by the pursuer and her father.

A doctor who attended the child in September 1870, deponed as to his health—“Weak, and in critical state for some time. He is not a robust boy. Not able to earn a living by out-of-door labour.” The pursuer stated—“He is not a strong boy. He never worked except for about three months five years ago; then he herded cattle. He was ill for thirteen months after that, about four years ago.”

On 15th January 1880, Mr Keith, the pursuer's agent, wrote to the defender making a claim for aliment. With regard to this the defender deponed—“In 1880 I had a letter from Mr Keith about child. I went to him and tried to settle with him. He recommended me to offer £25 for full settlement, and asked me to call again and he would let me know if pursuer would take it. Called again, and he said she would take no less than £30 paid down. I told my father of all this, and gave him Keith's letter. He called on Keith and told me that he had settled with him for £30 in three instalments, and that he had paid £10 to account. He said Keith was wanting expenses, and that he told Keith if pursuer would not take £30 to return the money. Heard no more from Keith, and thought the matter settled.”

The pursuer deponed—“In beginning of 1880 I called on my agent Mr Keith. Defender had paid me nothing up to that time. I wanted proceedings taken against defender. My agent told me when I called a second time that defender's father had offered to pay me £30 in instalments. I did not agree to that, but said to my agent that I would take £30 in cash down, and the expenses. Called on my agent again, and got payment of £10 from him, and I gave him a receipt for it.”

On 24th May 1883 the Sheriff — Substitute ( Spittal) pronounced this interlocutor—Having considered the process and heard parties' procurators, Finds (1) that in October 1867 the pursuer gave birth to an illegitimate male child, of which the defender is admittedly the father; (2) that for several years the defender was not asked to pay, and did not pay, anything to the pursuer for inlying expenses and aliment; (3) that in 1880 the pursuer, through her agent, Mr Keith, made a demand on the defender for aliment, and that after some negotiations an arrangement was made between the defender and his father on the one hand, and Mr Keith, as agent for the pursuer, on the other, whereby the defender was to pay to the pursuer in full of her claims the sum of £30 by three yearly instalments, whereof the first was paid on 7th July 1880; (4) that the remaining instalments are still unpaid: Decerns against the defender for the sum of £20 sterling: Further, in respect that the failure timeously to carry out the said arrangement, and to pay the remaining instalments, is not due to the defender but to the pursuer, finds the defender entitled to expenses, &c.

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“ Note.—This case, in the view I take of the evidence, is a most unfortunate case of litigation. The defender all along admitted the paternity of the pursuer's child. But as the defender was only a labourer on his father's farm, and the families of the pursuer and defender were on friendly terms, the defender was never pressed for payment of aliment, and indeed was encouraged by pursuer and her friends not to pay any aliment so long as he remained dependent on his father. When defender's father put him into a small farm the pursuer seems to have thought that he should then be made to pay, and she accordingly sent word to him to that effect through a law-agent. The pursuer wanted £30,‘cash down.’ The defender and his father were willing to give the £30 in three yearly instalments, but objected to give expenses in addition. At that time the expenses cannot have been more than a few shillings. The negotiations ended at that time in the defender's father paying £10 to the pursuer's agent as the first instalment, and, as he says, on the footing that if the pursuer could not take the £30 in this way the money was to be returned. The money was not returned, but was paid over to the pursuer by her agent. On this matter I adopt the defender's version of the story, and I therefore think that all that remains due by the defender was the remaining two instalments of the £30. This £30, it may be noticed, is almost exactly equivalent to the inlying expenses and aliment of the child up to the age of seven years. The pursuer now repudiates this agreement, and seeks to have the defender found liable in aliment beyond the seven years, on the ground that the child is weakly and not able to work. On this point, too, I adopt the view stated by the defender. I incline to think (1) that the defender did offer to take the child after it had attained the age of seven, and that his offer was refused; and (2) that there is no sufficient proof of the child's inability to contribute something to its own maintenance. The pursuer, I think, has been ill advised in the matter, and must bear the expense of the litigation.”

On appeal the Sheriff ( Thoms) adhered..

The pursuer appealed, and argued—There was no proof here of a compromise, and the pursuer was therefore entitled to her legal rights— Hardie v. Leith, October 31, 1878, 6 R. 115; Shearer v. Robertson, November 29, 1877, 5 R. 263.

The respondent argued—The agreement had been proved here. The defender's offer to take the child when seven years of age barred any further claim for aliment. There was no proof of the delicacy of the child, and the aliment might not be allowed for a longer period than ordinary — Corrie v. Adair, February 24, 1860, 22 D. 897.

At advising—