Scottish Court of Session Decisions

Margaret Law, who was formerly a domestic servant, on the 19th May 1851 gave birth to an illegitimate male child, of which she alleged that Walter Buchan, market gardener at Muirhouses, Linlithgow, was the father. The latter refused at the time to acknowledge the paternity, and she alone continued to support the child herself till 1857. In August of that year, however, they executed a deed of agreement and discharge, in which she renounced and discharged all claims against him for bygone aliment of the child, or for repayment of any money disbursed by her for the maintenance, clothing, and upbringing of the child; in consideration of which, and, on the other part, he thereby acknowledged the child as his son, and engaged and promised thenceforth to aliment and support the child, so far as he might thereafter be able to do so, while the child was unable to earn his own subsistence. He did not after the agreement pay anything for the child's aliment. He paid 30s. for inlying expenses. The child attained minority on 19th May 1865. The mother in November 1873 married John Doig, surgeon at Bathgate, and with consent of her husband, in 1884, raised this action against Buchan to have him ordained to pay the sum of £152, 18s. 5d., as the balance of inlying expenses attending the birth of the child, and aliment at the rate of £8 per annum from the date of the birth until the child arrived at minority on 19th May 1865.

In defence the defender stated that he had never admitted that he was actually the father of the child, and he made no such admission now. As to aliment prior to the agreement, he founded on the discharge. He stated that in 1857 he had been rendered incapable of regular work through his hand being shattered by the bursting of a gun, and was unable till the winter of 1859 to resume his employment; that in 1880 he became, for the first time after his injury, able to contribute towards the aliment of the child; that in and about that year he made offer to the pursuer to take custody of and maintain the child, which was then about nine years of age, and to aliment him in family with himself, and also offered to have the child bound as an apprentice to any trade which the pursuer might choose; that these offers were declined by the pursuer, who absolutely declined to part with the boy. “In respect of said offers and refusal, the defender's liability to contribute anything towards the support of the child ceased and determined; and this was well understood and acquiesced in by the pursuer.”

He also stated that for nearly a year before he offered to take the child the boy was working in the pottery works at Bo'ness, and earning about a shilling a-day; that he was always a strong, healthy lad, and was able to earn his own subsistence from an early age; that he (defender)

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had, moreover, as occasion required, assisted him with various sums of money, and since he grew up had helped to start him in business.

“(Stat. 7) The defender's liability is thus entirely excluded by said discharge and agreement, the defender's offer to undertake the custody and alimenting of the boy, and the boy's ability to earn his own subsistence. Moreover, this result has been understood and acquiesced in by the pursuer, who, since the defender's said offer in 1860, has not, until within the last few months, made any claim for aliment against the defender. Her demands are thus absolutely barred by mora and taciturnity.”

The defender, however, under reservation of his pleas, judicially tendered £20 in full of the pursuer's claim.

Proof was led, the import of which sufficiently appears in the Lord Ordinary's note and the opinion of Lord Young.

The Lord Ordinary ( Kinnear) decerned against the defender for the sum of £20.

“ Opinion.—The pursuer has failed to establish any ground for setting aside the discharge of bygone aliment. The case for reduction would be a very unfavourable one if the evidence of deceit were much stronger than it is, for the discharge is dated in 1857, and no claim for the aliment then past due appears to have been made till shortly before the action was raised; and then it would appear from the evidence that the claim was brought forward for the purpose of compelling the defender to contribute towards payment of a debt for which he is no way liable. But upon the evidence I am satisfied that the discharge expresses fairly the terms to which the pursuer agreed, viz., that if the defender would acknowledge the paternity of her child, and his liability for future aliment, she would make no claim for bygones. The discharge does not bar the claim for the period subsequent to its date. But I have some doubt whether the defender has not sufficiently established his defence that he is relieved of liability by an offer, which the pursuer refused, to take the child into his family, and bring him up with his legitimate children. On the whole, however, I have come to be of opinion that the pursuer may still be entitled to insist upon her claim for the period between the discharge and the time when the boy was able to work for himself. But the sum of £20 tendered by the defender is sufficient, in my opinion, to satisfy that claim. The pursuer is equally liable with the defender for the support of her child, and her claim against him is for a rateable contribution only. But her statement is that during the period in question she paid £4 a year for the child's maintenance. Assuming that the defender is liable to contribute his share for her relief, and keeping in view the evidence as to the time when the boy began to work for himself, I think the sum tendered sufficient. ”

The pursuer reclaimed, and argued—The sum awarded by the Lord Ordinary was in every aspect of the case inadequate, for even if the agreement were to be founded on (and it was little better than a compromise of certain rights between the parties) it was proved that the defender had only paid 30s. in fulfilment of his obligation. The pursuer had supported the child entirely for the first six years. The time up to which aliment was held legally due to a bastard child by the father was stated by Erskine and Bell to be till he attained the age of puberty— Clarkson v. Fleming, July 7th 1858, 20 D. 1224. The cases of Lamb v. Patterson, Dec. 6th 1842, 5 D. 248; and Patrick v. Gordon, 26th Nov. 1845, 8 D. 138, were cases in which the Court awarded the aliment on a higher scale than that adopted by the Lord Ordinary. The pursuer was fairly entitled to £8 for six years from the date of the agreement. The plea of mora could not be sustained. In the case of Moncrieff v. Waugh, Jan. 11th 1859, 21 D. 216, the child was born in 1817, and the action for aliment not raised till 1856.

The defender replied—The main purpose of the agreement was that he should acknowledge the child. He was unable, owing to an accident to his thumb, to support it, and he only bound himself to do what he could for it in the future. But the pursuer's claim was barred by the offer which he made to provide a suitable home for the child. This was proved most clearly. It was a serious and deliberate offer to take the child and it was refused by the pursuer in such circumstances as extinguished her claim — Grant v. Yuill, Feb. 29th 1872, 10 Macph. 571; Dunnet v. Campbell, Dec. 11th 1883, 11 R. 208. The earlier cases fix 7 years, up to which a boy is entitled to be alimented. Lastly, it was proved that at the time in question the sum usually given was £4 per annum from each of the parents, so that according to the county practice the sum awarded by the Lord Ordinary was ample.

At advising—