Scottish Court of Session Decisions

An action was raised in the Sheriff Court of Aberdeen by A B, an illegitimate child, and X Y, a widow, in whose care she was living, against the trustee and executor of C D, the father, who died in 1890, concluding for payment of £30 per annum by way of aliment. The paternity of the child was in the first instance denied by the defender, but at a later stage in the case it was admitted. She was born on March 21st 1886.

The pursuers averred that the pursuer X Y and her late husband, in virtue of an arrangement come to with the mother of the child, adopted her in May 1886 as their own child, and that the sum of £100 was paid to them at that time by the father towards her maintenance; that shortly thereafter the mother had applied to the Court for the custody of her child, but that her application had been refused, and that the child had since been brought up and cared for by X Y and her husband; that in 1889, owing to the ill-health of the child, and the consequent expense of maintaining her, the father was called upon to make a further contribution towards her maintenance, and that an action was raised against him for aliment, which was settled by payment of £70 and expenses.

The pursuers further averred that the husband of X Y had died two years previously without leaving her any means of support, and that she had no means of support but by keeping lodgers, and was only barely able to keep herself.

They averred— “(Cond. 5) The first-named pursuer has been in delicate health all her life, and her survivance is solely attributable to the exceptionally careful and kind treatment of her by her adopted mother, the second-named pursuer. Periodical and severe illnesses have befallen her during her whole life, which for lengthened periods disabled her from attendance at school. She is never likely to be able to earn her own livelihood, for her delicate constitution will prevent her from earning or acquiring any handicraft.”

The defender averred that X Y and her husband, under the original arrangement had agreed to adopt the child and maintain her for all future time. He further averred that in respect of the payment made in 1889 above referred to, X Y and her husband granted a formal discharge in favour of the father, by which they jointly and severally accepted the said sum in full satisfaction of all claims for aliment past due and to become due for A B.

The pursuers maintained that the discharge founded on by the defenders was personal to X Y's husband, and that he could not bind his representatives to implement it; and further, that the minor pursuer, not having been a party to it was not bound thereby.

The defender pleaded—“(2) Separatim, the pursuer X Y having adopted the said A B as her own child, and having received from the said C D (1) a sum of £100, and (2) a sum of £150 in respect of her having done so, and having granted the discharge condescended on, is barred from suing the present action, and said action, so far as at her instance, should be dismissed with expenses. (3) The pursuer A B, in respect of her being at present in the custody and under the care of the said X Y, and in respect that she is at present being maintained by her, is barred from suing the present action, and the defender should be assoilzied with expenses.”

The Sheriff-Substitute ( Duncan Robertson) appointed a curator ad litem to the minor pursuer.

On 13th December 1898 the Sheriff-Substitute pronounced an interlocutor whereby he sustained the defender's second plea, and held that the action was barred so far as at the instance of the pursuer X Y, and to that extent dismissed it, and quoad ultra allowed the parties a proof before answer. The evidence clearly established that A B had always been and still was in delicate health.

With reference to her ability to maintain the child, the pursuer X Y deponed—“I have no income whatever of my own beyond what I make by keeping lodgers, and they are not steady but are always coming and going. At present I have three lodgers. I get 15s. from them—5s. each. In addition to that they pay for coal and gas. My friends are always giving me. They paid my rent last six months. That is what I make now, but I have no certainty that the lodgers are to be with me for all time. What my friends give me is only voluntary on their part. To enable me to provide accommodation for three lodgers I require a larger house than I might otherwise have. My rent comes to 6s. 11d. per week, and deducting that from 15s. leaves 8s. 1d. But they are getting tired of it, and turn round and tell me they will not give me it any longer so long as I keep that child. I suppose they assist me for charity's sake, knowing the way I was left. My rent is in arrear just now, about the last quarter, I think. I am not in a position to go on maintaining the child at the extra expense I have been to unless I get into debt, and I do not choose to do that. If my friends did not assist me I am not able to do it. (Q) If they don't assist you what would be the alternative; you would have to give up the child to some-one that would keep it—(A) But I will not do that; I would go as a charwoman first.” …

Page: 423↓

The Sheriff-Substitute on 10th April 1899 dismissed the action.

Both pursuers appealed to the Sheriff, who on 24th June 1899 dismissed the appeal.

The pursuer A B appealed to the First Division, and argued—The primary claim of a child was against his father or his father's representatives. It might be enough for the father to say that he was fulfilling his obligation in a particular way. But it was no answer to say that X Y was bound to relieve the trust-estate of a claim at the instance of the child. Even if the contract could apply beyond the joint lives of the parties to it, on a fair construction it came to an end when the ordinary period of maintenance ended. It was proved that X Y was no longer in a position to support the child, and it was admitted that the trust-estate could afford a proper sum. The case of Pott v. Pott, December 7, 1833, 12 S. 183, formed a precedent for the amount claimed.

Argued for respondent— The contract was clearly intended to subsist during the joint lives of the spouses. At any rate X Y had homologated it after her husband's death by continuing to maintain the child as a matter of duty. The obligation of the father to maintain his child was fully satisfied by this arrangement, under which it was intended to provide for the maintenance of the child, and in accordance with which she had in fact been maintained. The real question at issue was one of fAct — Had the child been properly maintained in the past, and would she be so in the future? The evidence showed that the answer to both these questions was in the affirmative.