Scottish Court of Session Decisions

Mrs Margaret Taylor or Brown raised an action in the Sheriff Court at Glasgow against David Ferguson craving the Court to find that the defender was the father of an illegitimate male child, of which the pursuer's daughter the deceased Elizabeth Brown was delivered on 29th June 1900, and to decern against the defender for payment to the pursuer of the sum of £8 yearly as aliment for the child from 29th June 1900 till he should attain the age of fourteen or be able to support himself.

The pursuer averred that the defender was the father of the child, and further—“(Cond. 8) Prior to and since the death of pursuer's daughter, the said Elizabeth Brown, pursuer maintained and is still maintaining the said child in family with her, and has disbursed the sums concluded for.”

The defender averred, inter alia—“(Stat. 2) Defender has throughout denied the paternity of the child to which the said Elizabeth Brown gave birth on 27th June 1900, but subsequently, to avoid the heavy cost of litigation and without admission of paternity, he offered to take charge of the child, and he went to Aberdeen for the purpose. His offer was refused, and ultimately, upon the same conditions, he agreed to pay half aliment. (Stat. 3) On hearing that Elizabeth Brown was in South Africa and that the child was not in her custody he again offered in October 1903 to take the child. On receiving assurance that the child was still in custody of the mother (contrary to the fact implied by article 8 of pursuer's condescendence that the child was in custody of pursuer in Aberdeen) he continued payment of the aliment. (Stat. 4) After the death of the said Elizabeth Brown, which occurred on 8th June 1904, defender renewed in August 1904 his offer to take charge of the child but pursuer refused the offer. Pursuer is called upon to produce defender's letter to her agents of August 1904.”

Statements 3 and 4 were admitted by the pursuer.

The defender also tendered the sum of £12, 10s., being the aliment due at the date of his offer in August 1904, and renewed his offer to take charge of the child.

The defender pleaded, inter alia—“(3) Defender having made a bona fide offer to take charge of said child as from and after 8th June 1904, and said offer having been refused, pursuer is not entitled to decree for aliment after the date of said offer.”

On 16th March 1910 the Sheriff-Substitute ( Davidson) sustained the third plea-in-law for the defender, decerned against him for £12, 10s., the sum tendered, and found him entitled to expenses.

On 6th July 1910 the Sheriff ( Millar) on appeal adhered.

The pursuer appealed, and argued—(1) It was conceded that the pursuer was not entitled to a decree for future aliment, but she was entitled to recover the sums expended by her in name of aliment down to the date of the action, for which she had undoubtedly a title to sue— Macdowall v. MacLurg, 1807, M. voce Prescription, App. No. 6; Butchart v. Dunlop, June 28, 1839, 1 D. 1128. An offer by a defender in an action of affiliation and aliment to take the child was no answer to the pursuer's claim so long as he denied the paternity— Keay v. Watson, February 19, 1825, 3 S. 561; Caldwell v. Stewart, 1773, 5 Br. Sup. 390. The same rule applied in the present case, for though

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the mother of the child was dead and the grandmother was the pursuer, she had been given the custody by the child's mother, whose wishes were entitled to be considered— Brand v. Shaws, December 22, 1888, 16 R. 315, 26 S.L.R. 199. (2) In any event the pursuer was entitled to recover aliment down to June 1907, when the child reached the age of seven, for even the admitted father of an illegitimate child could not escape the payment of aliment for it by an offer to take the custody before the child was seven years old— Westlands v. Pirie, June 1, 1887, 14 R. 763, 24 S.L.R. 538, per Lord Rutherfurd Clark, at p. 767, p. 539; Corrie v. Adair, February 24, 1860, 22 D. 897; Ligertwood v. Brown, June 21, 1872, 10 Macph. 832, 9 S.L.R. 539, at p. 833, p. 540. The mother's death made no difference, for the same considerations operated in favour of leaving so young a child with the pursuer, who had been given the custody by the mother. The pursuer was therefore entitled in either view to a proof of paternity.

Argued for the pursuer (respondent)—The claim for future aliment was bad— Den v. Lumsden, November 10, 1891, 19 R. 77, 29 S.L.R. 76. Nor was the pursuer entitled to recover any aliment for the period subsequent to 1904. As a general rule a father was entitled to take the custody of an illegitimate child in lieu of paying aliment, for he was entitled to discharge his liability in the way least burdensome to himself— per L. J.C. Inglis in Corrie v. Adair, cit., at p. 900. There might be an exception where the defender in an action of affiliation and aliment denied paternity, but that exception was limited to the case where the claim for aliment was at the instance of the mother of the child, and was based on her inalienable right to its custody— Brand v. Shaws, February 24, 1888, 15 R. 449, 25 S.L.R. 332—and not on unfitness of the father to have the child, which did not involve his being denied the custody— Grant v. Yuill, February 29, 1872, 10 Macph. 511, 9 S.L.R. 299. The defender's offer might quite well be a good answer to the pursuer, though it would not have been good against the mother of the child— Buie v. Stiven, December 5, 1863, 2 Macph. 208. Further, the pursuer was under no obligation to support the child, and was in law a stranger to it, against whom an offer to take the child was good— Mathieson v. Kirk Session of Fodderty, December 22, 1831, 10 S. 183. In any event the pursuer's delay in bringing the action defeated her claim. If she had brought her action in 1904 and proved paternity, the defender's offer would, on such proof, have become good, and the pursuer could not thereafter have kept the child and recovered aliment, while if she had failed to prove paternity she could not have recovered from the defender. In neither case therefore could she have recovered any aliment subsequent to 1904, and she could not be allowed to profit by her delay in bringing the action. (2) The fact that the child was only four years old at the date of the defender's offer made no difference, for the father could always discharge his obligation by such an offer so long as the child was not in the mother's care— Westlands v. Pirie, cit. The rule that a defender in an action of affiliation and aliment could not discharge his obligation by taking the child before it reached the age of seven, if such rule there was, proceeded on the view that the mother was the best person to have the custody until that time.

At advising—