Scottish Court of Session Decisions

Lord Stormonth Darling—The Sheriff-Substitute has sustained the first plea-in-law for the defender, which is that the action is irrelevant, and has dismissed the action. I think that the Sheriff is right. The pursuer is a labourer, and the husband of the defender's sister, and he says that in May 1897 he took the defender, who was then an orphan of eleven, into his house, and continued to support him until he began to serve his apprenticeship as a mason. The pursuer now sues the defender for the amount of the aliment furnished up to May 1899. After that date, as I understand, no claim is made, because the boy contributed enough to cover his maintenance until 1906, when he left the pursuer's house. The claim is thus obviously made in respect of aliment afforded to a pupil. I am of opinion that aliment allowed to a pupil by a person who is not under a natural obligation to support him must be considered to have been afforded ex pietate, and that there is no relevant claim against the pupil, even if he succeeds to a small sum of money in after life. If it be said that the defender is under a moral duty under these circumstances to reimburse the pursuer for his expenditure, I am afraid that the answer is that we have nothing to do with moral duties, and that a legal obligation cannot be incurred by a person who is not a legal persona. The pursuer further avers that the defender promised to pay for his maintenance, but I think that that averment is irrelevant, because there is no statement as to the terms of the promise or as to the time at which it was made. I propose therefore that the appeal should be dismissed and the judgment of the Sheriff-Substitute affirmed.

Lord Low—I am of the same opinion. It has always been recognised that cases of this description must be treated each according to its own special circumstances. The special circumstances of this case as averred by the pursuer, are as follows:—In 1897 the pursuer's brother-in-law, aged between eleven and twelve years, was left an orphan and destitute owing to his fathers death. The pursuer took him into his own home and maintained him there for two years, until he obtained an apprenticeship and was able to pay for his board and lodging. Now, the plain inference from these facts seems to me to be that the pursuer acted from a very natural and proper sense of duty without any ulterior motive, and without any idea of making a subsequent claim. The circumstances of the case seem to me to preclude the idea that the pursuer thought at the time that this boy was incurring a debt which he might afterwards be called on to pay. I am convinced that the idea of claiming repayment is an afterthought, suggested by the fact that the young man has now come into a little money. I am therefore of opinion that the Sheriff-Substitute has rightly decided this case.

Lord Ardwall—I concur. The question is whether the aliment afforded by the pursuer to the defender was supplied animo donandi, or with the intention that a debt should be created against the defender. We had a careful and interesting citation of old authorities from Mr Steuart in support of the latter alternative, and there are dicta which to a certain extent support his contention. But I think that the tendency of the more recent authorities is to consider the question whether in cases such as the present the aliment supplied was intended to be a donation or a debt as one depending on the circumstance of each case, and not on any fixed rules or presumptions of law. And in the present case a consideration of the facts disclosed on the record leads me to the conclusion that the aliment, repetition of which is now sued for, was given ex pietate as a donation, and with no intention that it should form a debt against the defender. I therefore agree with the judgment of the Sheriff-Substitute.

The Lord Justice-Clerk concurred.