Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of the Lothians and Peebles. The facts of the case, about which there was no dispute, were as follows:—The pursuer was Helen Wilson, domestic servant at Dalkeith; the defender was William M'Minnin, gardener at Lasswade. On 26th July 1904 the pursuer gave birth to twin illegitimate children, of whom the defender was the father. By arrangement between the parties each took the custody of and supported one of the children. In these circumstances the pursuer brought an action in the Sheriff Court of the Lothians and Peebles at Edinburgh concluding against the defender for, inter alia, the sum of £7 per annum for fourteen years as a contribution to the aliment of the child in her custody. The pursuer did not deny that she was in a position to aliment this child.

The pursuer pleaded, inter alia—“The defender being the father of the pursuer's child is bound to contribute for its aliment.” The defender pleaded—“In the circumstances stated the defender is entitled to absolvitor with expenses.”

On 20th October 1904 the Sheriff-Substitute ( Guy) pronounced an interlocutor assoilzieing the defender.

Note.—“The material facts for the decision of the case are not in dispute. Illegitimate twin children are born as the result of carnal intercourse between the parties. Both father and mother are equally liable to maintain them. They give effect to that equal burden by each taking a child. Now, the mother wishes to disturb the equality of the total burden which rests upon them by causing the father to bear three-fourths of it while she only bears one-fourth. In the usual case where only one child is in

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question, the parent having the custody of the child, and expending what is necessary for its maintenance—in most cases the mother—has a right of relief for a half from the other parent as the proper contribution under the liability which rests equally on both parents. Although in most cases the mother has the custody, there seems no reason why if the father takes the custody he should not have a right of relief against the mother for her contribution. In the case of Alexander v. Robertson, January 15, 1883, Guthrie's Select Cases (2nd series), p. 13, decree was given in this Court by Sheriffs Rutherfurd and Davidson against a mother for aliment of an illegitimate child maintained by the father. In the present case, if the mother has a claim against the father for half of the cost of maintenance of one child, that claim is exactly met and extinguished by the claim which the father has against her for her half of the cost of maintenance of the other child. The pursuer's averments as to her ability to maintain the child do not in my opinion affect the question. Her action is one of relief based upon the position that she is maintaining the child.”

The pursuer appealed to the Sheriff ( Maconochie), who on 9th November 1904 pronounced an interlocutor recalling the interlocutor of the Sheriff-Substitute, and granting decree against the defender in terms of the conclusion of the petition.

Note.—“The defender admits the paternity of the child in question and further admits that the pursuer and he are liable to aliment it ‘jointly.’ His sole defence is that the pursuer and he arranged that one of them should provide for one child (there happen to be twin illegitimate children), and that the other should provide for the other child. In these circumstances the defender maintains ‘Any claim the pursuer may have against the defender is met by a counter claim on the part of the defender for the half-maintenance of the one he is providing for.’ The Sheriff-Substitute has found in law that the defender is not liable to contribute towards the maintenance of the child which is in the pursuer's keeping on the ground that the ‘mutual claims for contribution to the aliment of the respective children compensate one another.’ I do not think that there is any room for the plea of compensation being given effect to. The debt sued for is a debt due not to the mother but to the child ( Clarke v. Carfin Coal Company, July 27, 1891, 18 R. (H.L.) 63, see Lord Watson, p. 68), and the result of sustaining the defender's plea here would be to hold that the parents of an illegitimate child could by a contract entered into between themselves effectually deprive the child of the right to be alimented by both parents. Possibly (I give no opinion on the point) owing to the terms of the agreement averred there may be a question between the parents as to whether the defender is entitled to be repaid any part of the amount which he has expended on alimenting the illegitimate children, but that is a question which cannot, in my opinion, be decided in a case in which a debt due to one of the children is being sued for. I may in conclusion refer to the case of A B v. C D, February 12, 1842, 4 D. 670. There the mother had granted to the father a discharge of inlying expenses, ‘and of all claims and demands competent to the said child on account of … aliment, due or to become due.’ The Court there held that the mother was barred from claiming inlying expenses or past due aliment, but refused to hold that the child was barred from raising through its administrator a claim for future aliment. There Lord Medwyn said—‘If this action were for the benefit of the mother alone I should hold it incompetent, but as regards the future aliment of the child I think it is a good claim.’ Here no arrears are claimed, and on the authority of that case, and on general principle, it seems to me that with regard to future aliment the claim is good, and that the sole defence stated is irrelevant.”

The defender appealed to the Court of Session, and argued—The mother was the true pursuer in this action, as the claim was one of relief against the father; the father was jointly liable with the mother for the support of their illegitimate children, and therefore any claim by the mother for aliment for the child she was supporting was set off by the corresponding claim of the father— Thomson v. Westwood, February 26, 1842, 4 D. 833, at p. 841; Bine v. Stiven, December 5, 1863, 2 Macph. 208, at p. 223; Den v. Lumsden, November 10, 1891, 19 R. 77, 29 S.L.R. 76; A B v. C D, February 12, 1842, 4 D. 670; Corrie v. Adair, February 24, 1860, 22 D. 897, at p. 900.

Argued for respondent—The claim was on behalf of the child, not a claim of relief on behalf of the mother; the child was entitled to aliment from the father, and no arrangement between the parents should be allowed to interfere with its claim—Fraser on Parent and Child, p. 125; Clarke v. Carfin Coal Company, July 27, 1891, 18 R. (H.L.) 63, 28 S.L.R. 959.