Scottish Court of Session Decisions

William Den, Inspector of Poor for the parish of Meldrum and county of Aberdeen, presented a petition in the Sheriff Court at Aberdeen against John Dunlop Lumsden, praying the Court “to ordain the defender to pay to the pursuer the sum of ten shillings sterling weekly in advance, as from the twentieth day of December Eighteen hundred and ninety, until the children, John D. Lumsden and George Addison Lumsden, shall attain the age of fourteen years respectively and be able to maintain themselves, or until the pursuer is relieved of their maintenance, with the legal interest on each weekly sum from the date of its becoming due till payment, and with expenses, and to grant warrant to arrest on the dependence.”

The pursuer averred—“(Cond. 2) In the month of August 1887 Ann Burr, whose address is at present unknown, gave birth to a child of the name of John Dunlop Lumsden, at Crooked Lane, Aberdeen. The defender is the father of said child. In the month of June 1889 the said Ann Burr gave birth to another child of the name of George Addison Lumsden, at India Street, Edinburgh. The defender is the father of said child. The defender's averment in answer is denial. Explained that at the date when the proceedings were raised Ann Burr's address was not known to the pursuer. (Cond. 3) The said Ann Burr has deserted the said children, and her address is unknown to the pursuer, and as the parish of settlement of the said Ann Burr is the parish of Meldrum, the said children have become chargeable to said parish. The defender is the father of the said children and is bound to aliment them, but he refuses or delays to do so, and the present proceedings have therefore become necessary. (Cond. 4) The mother of the children having deserted them, and her address being at present unknown to the pursuer, the defender is liable in payment of the whole aliment of the foresaid children, and the sum mentioned in the prayer of the petition is a reasonable aliment to allow them. The address of the said Ann Burr is now known to the pursuer, but she is unable to contribute pecuniary assistance to the aliment of her children, and she declines to maintain them.”

The defender on record denied that he was the father of the children.

On 27th March 1891 the Sheriff-Substitute ( Brown) before answer allowed the parties a proof of their averments.

“ Note.—… It was further argued for the defender that a parochial board is not entitled to a continuing decree of any kind, but must be content to sue for sums actually expended. The original conclusions I have no doubt were incompetent, but as amended, with consent of the defender, they are in accordance with those in a case reported by Hume— Kirk-Session of Wigtown v. Dalziel, 453, and the case of Anderson v. Heritors of Lauder, 10 D, 960. The pursuer alleges that the mother of the children, who had now been discovered, is unable to contribute her share, but that is a matter of fact, and therefore the proof is made before answer so far as the defender's pleas are not otherwise disposed of.”

The defender having appealed, the Sheriff ( Guthrie Smith) adhered on 20th May 1891.

On 29th May the defender lodged a minute admitting the paternity of the children, and on 16th June the Sheriff-Substitute, in respect of this minute, decerned against the defender as prayed for.

The defender appealed, and argued—A parochial board was only entitled to recover sums actually expended by them, and was not entitled to decree for a continuing payment such as was asked for here— Duncan v. Forbes, February 8, 1878, 15 S.L.R. 371; Gillies v. M'Dougall, &c., Guthrie's Sheriff Court Cases, 27.

The pursuer argued—It was competent to grant a decree for a continuing payment such as was asked for here— Anderson v. Heritors and Kirk-Session of Lauder, March 11, 1848, 10 D. 960; Kirk-Session of Wigtown v. Dalziel, February 6, 1795, Hume's Dec. 453.

The case was continued to give the pursuer an opportunity of amending his record, and he subsequently proposed to amend the prayer of his petition by asking decree in this form:—“To ordain the defender to pay to the pursuer the sum of (first) £1, 5s. 9d., being the amount expended by the pursuer as Inspector of Poor of the parish of Meldrum in alimenting John Dunlop Lumsden and George Addison Lumsden, the children of the defender, from the 20th December 1890 till the date of this action, with interest at the rate of 5 per cent. per annum on the said sum from the date hereof till payment; further, to ordain the defender to pay to the pursuer the sum of (second) five shillings weekly for each of the said John Dunlop Lumsden and George Addison Lumsden until they shall respectively attain the age of fourteen or cease to be a charge on the pursuer as inspector foresaid, the first payment of 5s. for each of the said John Dunlop Lumsden and George Addison Lumsden to be made seven days after the date hereof, with interest on each sum of 5s. from the date when it shall become due till paid, and with expenses.”

He also proposed to add averments to the effect that he had already expended the sum of £1, 5s. 9d. on the maintenance of the defender's children, and that “the cost of alimenting and supporting the children is not and cannot be less than 5s. per week for each.”

In answer to these amendments the defender admitted that the sum of £1, 5s. 9d. had been expended by the pursuer on the maintenance of the children.

At advising—