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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Honourable William Maule of Panmure . Warre - Brougha - Moncreif - Murray v. Fox Maule, Esq. - Cranstou - Jeffre - Cockburn [1825] UKHL 1_WS_266 (1 June 1825)
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Cite as: [1825] UKHL 1_WS_266
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SCOTTISH_HoL_JURY_COURT
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(1825) 1 W&S 266
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1825.
1 st Division.
No. 31.
v.
Subject_Aliment. —
The Court of Session having found, that a son who had a commission in the army as an ensign, with L. 90 of pay, and an allowance of L. 100 a-year from his father, (who was an heir of entail in possession of an estate yielding an income of L. 10,000), was entitled to an aliment of L. 800 per annum from his father; the House of Lords reversed the judgment, and assoilzied the father.
In 1822, the respondent, Fox Maule, Esq. (who was then about twenty-two years of age), raised an action of aliment before the Court of Session against his father, the appellant, the heir of entail in possession of the estate of Panmure. In the summons, after founding on the deed of entail, he set forth, “that the pursuer is apparent heir of entail under the said deed to his said father, and has been educated in a manner suitable to his rank and prospects, and is entitled, besides, as the lawful son and presumptive heir of his father, to a suitable aliment and maintenance out of the ample estates that belong to him; but the only provision which the pursuer's father has made for his support has been to settle upon him L. 100 a-year, and to obtain for him an ensign's commission in our 79th regiment of foot, which
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In defence to this action, the appellant stated:
“The defender is possessed of the fee, and his son, the pursuer, is next in the succession of the entailed estate of Panmure; but by the
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provisions of that entail, events, over which neither of them have any controul, may entirely deprive the pursuer of any chance of the succession to that estate. The defender has always acknowledged and performed his duty as a father, in educating and alimenting the pursuer. He gave him an excellent education, and purchased a commission for him in the army. In other respects, the defender has made such allowances to his son as he concluded (by the advice of the colonel of the regiment, and other eminent officers) to be proper and adequate to his situation in his profession. But while the defender is ready to perform his duty to his son, he denies the competency of the present action, and maintains, that the pursuer has no right, as an heir of entail, or in any other character, to apply to this Court, and desire them to interpose between a son and a father, and assume the discretion of measuring out and apportioning the aliment which he shall give him. It is the defender's duty to alter, vary, or increase, according to existing circumstances, that aliment, he, as a father, may think most advisable in the particular case; and while he is willing to perform it, he submits that a Court of law is not called upon or entitled to exercise any jurisdiction in the matter.”
The appellant farther denied the allegations of the respondent, that he harboured a groundless dislike against him, or that the respondent represented the family of Panmure, or that he was in a state of that destitution which was essential to found an action of aliment. He farther averred, and offered to prove, “1. That he was proprietor of large landed estates held by strict entail, but affected by very heavy burdens, reducing his actual income to about L. 10,000 a-year, with a capital of debt of nearly L. 30,000, besides a variety of contingent claims of a serious nature. 2. That the respondent is the next heir of entail; but that, while in this respect his rights are not different from the rights of any other heir of entail, his chance of succession may be entirely defeated, even though he should survive the appellant, in consequence of a provision in the entail, by which, in the event of the honours and estates of Dalhousie, now vested in the appellant's elder brother, devolving on the appellant, the estates of Panmure shall devolve to other heirs, to the exclusion of the appellant's eldest son. 3. That the respondent was fully educated in a manner suitable to his rank and station. 4. That the respondent, by his own choice, entered into the army, and that the appellant purchased for him a commission, which he still holds. 5. That the appellant
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The Honourable Mr Maule appealed.
Appellant.—The plea maintained on the part of the respondent, and which has been sanctioned by the Court of Session, is, that by the law of nature, and by the law of Scotland, founded on it, a father is bound to maintain his children; that this obligation is perpetual, and subsists even after a child, whether male
_________________ Footnote _________________ * 2. Shaw and Dunlop, No. 452.; and see Opinions of Judges, Fac. Coll,
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It is a mistake to suppose, that because the civilians lay it down that a father is bound to aliment his children pro modo facultatum, they mean, that he is therefore to proportion the aliment to the extent of his funds, however large they may be. The dictum has reference to the situation of a person whose funds are small, and means that he can only be obliged to aliment his children according to his ability. But it is impossible for the respondent to allege that he is in a state of destitution. He has confessedly not only that which the State regards as sufficient for his support, but also L. 100 a-year; whereas, according to the doctrine of the Court of Session, he must be considered as destitute unless he has L. 800 a-year, being more than twice the amount of the pay of the commander of the regiment in which he is a subaltern.
The statute 1491, c. 25. has no application to the. present case, for the appellant is not a liferenter, but, so far as not fettered by the entail, is a fiar.
Respondent.—Although the respondent's claim rests both upon the statute and the law of nature, yet he admits that it is chiefly upon the latter that it is rested. The claim which a child has
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The appellant, however, attempts to make the determination of the claim depend upon a principle which was never hitherto brought into operation in any question of this description. Although he admits, 1st, That the father is bound to maintain the son; 2dly, That this obligation does not cease upon the son's reaching majority; 3dly, That it is not superseded by the son's having a trade or possession which does not yield him an adequate support; 4thly, That therefore, though the respondent be twenty-two years of age, and has an ensign's commission in the army, he is entitled to have aliment from his father;—yet he contends, that in fixing the amount to be given, the father is omnipotent. But although there is no doubt that a father has a right to exercise his discretion in the first place, it must be fairly exercised, and not abused; and consequently, where it is alleged that it is abused, the Court is entitled to interfere and do justice. Now, the basis of the respondent's complaint is, that although he had confessedly a legal right of aliment, yet, speaking practically, the discretion of his father in fixing its amount, with reference to the situation in which he is placed, the various duties which his station in society imposes upon him, towards his own family, to himself, to the public, and the profession in which he is engaged, has not been exercised, but has been evaded. The Court, therefore, was entitled to award an adequate aliment to the respondent.
The House of Lords “ordered and adjudged, that the interlocutors complained of be reversed, and that the defender be assoilzied.”
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My Lords,—This cause of Maule v. Maule is perhaps one of the most important, at least it appears to me to be so, that the House has ever been called upon to consider; and I very well recollect, when it was in the course of hearing, it had frequently occurred to your Lordships, who had heard something of the cause, that if the law as pronounced in this judgment was the law of Scotland, it ought not to be the law of Scotland any longer;—but if that proposition can be maintained, your Lordships, I am sure, will bear in recollection, that the alteration of the law cannot be made in judgment in any case now depending, but must be made by an Act of Legislation. The question, therefore, you have to determine in this case is, whether the law of Scotland has been properly declared, attending to the particular circumstances of this case. If it has, you must be bound in judgment; if your Lordships are satisfied that it has not, of course the judgment must be reversed.
My Lords,—The facts of the case, as I understand them, may be represented to your Lordships in the following manner:—This was a summons, which they call a summons for aliment, in respect to which considerations arise out of the Act 1491, and out of the question, what is the law with respect to aliment jure naturæ? This was a summons brought by Mr Maule, who represents himself to be the “eldest lawful son of the Honourable William Maule of Panmure, and heir of entail next in succession to the lands and estate of Panmure after the said Honourable William Maule;” Then it represents, “that the now deceased Right Honourable William Earl of Panmure, for the better preservation of his family and memory, and continuation of his estates with his relations and heirs of taillie therein mentioned, executed a deed of entail, which is dated the 12th of October 1781, registered in January 1782 in the Register of Entails, and in the Books of Council and Session the 8th of February of the same year, of his lands and
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My Lords,—I have pointed out, in the manner in which I have expressed myself, the fact, that George Earl of Dalhousie was a liferenter, and that William Maule had the estate to him and the heirs-male of the body of the said William Maule; because it may possibly, when you come to see what persons had the estates in the year 1791, be considered as applying in construction,—it may be material that the Earl of Dalhousie was the liferenter, and that William Maule by the disposition took to him, and to the heirs-male of his body. With respect to the particular part I have read, as to the aliment the Earl of Dalhousie was to make to the next heir, whether William Maule or any one taken by substitution after him, it may be material to state the
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The next allegation is, “That in virtue of this deed of entail, the said George Earl of Dalhousie succeeded to the liferent of the said lands and estate of Panmure, which he enjoyed till the year of his death in 1787, when the Honourable William Maule, the pursuer's father, and institute under the deed, succeeded to the lands and estate of Panmure, which he has enjoyed ever since.” It then charges, “that the appellant is apparent heir of entail, under the deed to his father, and has been educated in a manner suitable to his rank and prospects.” And I take leave to repeat those words, because I think, in the consideration of this very important case, it will be necessary to attend, not only to what has been declared to be the opinion of the Lords of Session, who have decided with respect to what a father is bound to do after a son attains the age of majority; but also, how far the Court do or do not actually interfere in what he does with respect to the expectations of the son, previous to his attaining the age of twenty-one years. It is quite obvious with respect to what a father may be called upon to do, after a son attains the age of twenty-one, that what may be proper to be done with reference to a son educated in one way during his minority, may or not be proper with respect to a son educated in another way, or with reference to the maintenance of that son after he has attained the age of twenty-one. “And that he is entitled besides, as the lawful son and presumptive heir of the father, to a suitable aliment and maintenance out of the ample estates that belong to him:”—the pursuer stating his claim, as a claim resting on two grounds; first, That he is apparent heir of entail to his father,—and I repeat the words, ‘apparent heir of entail to his father’ again, referring to the particular expressions to be found in the Act 1491. “And that he is entitled to a suitable aliment and maintenance out of the ample estates that belong to him,”—resting his claim, as your Lordships observe, both upon the parental obligation, and also upon the obligation which is understood to result from the relation which each of the parties bear to the estate, of which the one is in possession and the other is in expectation.
Then he states, “That the only provision which the pursuer's father has made for his support, has been to settle upon him L. 100 a-year,
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Then it alleges, “That though the pursuer has often and divers times desired and required the said William Maule, defender, to grant him such reasonable aliment, proportioned to the rents and produce of the lands and estate, as to enable him to support his rank suitable to his education and quality in life, and for the maintenance of the pursuer; nevertheless he refuses, or at least delays, so to do.” And then there is this allegation, “And seeing that by the law of nature, as well as the laws of Scotland, the pursuer, as representing the noble family of Panmure, and as next in succession to the lands and estate of Panmure after the defender, is entitled in the mean time to be alimented out of the proceeds and profits of the lands and estate, in a manner suitable to his rank and station,” and the claim is then put on the laws of nature as well as upon the laws of Scotland. I should apprehend that this claim to be alimented in a manner suitable to his rank and station, by the law of nature as well as the laws of Scotland, will finally be found to rest upon the law of nature, and that it does not rest upon the laws of Scotland.
Then it prays, That it shall be declared by the Lords of Session, that the pursuer is entitled to a suitable aliment from his father ex debito naturali, and that he is in the mean time entitled to a maintenance for himself, and to an aliment suitable to his elevated rank and station, out of the rents, produce, and profits of the estate, where unto he is entitled to succeed after the defender, in terms of the rights and investitures of the same.” And then it prays, that the father might make payment to the son “of the sum of L. 2000 yearly, as a reasonable and suitable allowance, according to his rank and station, for the support of the rank of the family to which he is entitled to succeed, or such other sum as the Lords of Session may think fit and reasonable in the circumstances of the case, and this during all the years and days of the lifetime of the defender.” So that the prayer of this summons, your Lordships observe, is, that this gentleman claims and insists that he ought to be declared entitled to a suitable aliment from his father, and that he ought to have L. 2000 a-year, or such annuity from his father, as the Lords of Session should think a father ought to make to him as the son of that father during the joint lives of the father and the son; and of course, as it seems to me, submitting to the Court of Session a case, in which, if they can determine that the
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My Lords,— The parties having represented their arguments in the memorials and petitions which have been laid upon your Lordships' table, the Court of Session proceeded to decide upon this matter. The first interlocutor, appealed from is expressed in these words:—
“The Lords having advised the mutual memorials for the parties, they repel the defences pleaded for the Honourable Mr Maule, and find him liable in a suitable aliment to the pursuer; but before farther procedure, appoint the defender,”
that is, the father, “to give a condescendence of his free income.” The expressions to be found in this interlocutor which call for attention are, first, the words ‘a suitable aliment.’ In what respect the amount of that aliment was to be fixed, so as to entitle it to the character of being a suitable aliment, this interlocutor in no manner explains; except so far as you can consider it to be an aliment that a Court ought to consider as suitable by what should appear upon the condescendence of the father's free income.
Another, interlocutor was afterwards pronounced in these words:—
“The Lords having resumed consideration of this process, and advised the same with the condescendence for the defender, modify the sum of L.800 sterling for aliment to the said Fox Maule the pursuer, and decern the defender to make payment thereof at two terms in the year, Whitsunday and Martinmas, by equal portions, commencing at Whitsunday last for the half-year immediately preceding, and the next term's payment at Martinmas next, and so forth half-yearly thereafter, during the joint lives of the pursuer and defender, or until the said aliment shall be altered or recalled by this Court. Find the defender liable in expenses of this process.”
What, therefore, is pronounced in this interlocutor as the law of Scotland is this, that upon the representation made by Mr Maule in the condescendence stating his income, the Court was of opinion that they had a jurisdiction which authorized them to state to the father, that L.200 a-year (that is, the amount of an ensign's; pay as an officer in the army, and L. 100 a-year which the father allowed him) was too little, the father thinking it enough—and the father. I see intimating a disposition to purchase in the army in case an opportunity offered; but they thought themselves justified in ordering L. 800 a-year to be paid during the joint lives of the pursuer and the defender, or until the aliment should be altered or recalled by the Courts. The terms, therefore, of this interlocutor imbody what may be stated to amount to a judicial declaration, that at present the father had no discretion, but that he must allow L. 800 a-year; and that the power of altering or recalling that did not rest with the father in any circumstances that might occur in the course of the joint lives of the father and son, unless the son chose to agree to what the father so proposed; but that, on the contrary, the Court itself was, during the joint lives of the pursuer and defender, to take upon itself to determine what
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My Lords,—Taking the law to be as it is expressed in this interlocutor, it must be considered to have been pronounced to be not only the law as between Mr Maule and his son, but the law as between all persons standing in this relation to each other, under all circumstances; namely, that the Court has a jurisdiction, wherever the son of a parent —any son of a parent, (for I do not see how, if it is to rest on the natural obligation, another child may not apply also)—called upon the Court from time to time to oblige the parent to inform the Court of Session what are the circumstances of that father, what property he has, what is (as they express it) his free income, what debt he has; because it is not a mere statement by him that such and such is his free income that will do, they must have a right somehow or other to determine what is his free income, in order to ascertain what allowance can be taken out of that free income to his son; and then they must, during the period which the annuity is directed to be paid, until altered or recalled, have a right to take cognizance of this at the instance of the son, on the one hand, to call upon his father de anno in annum to state to the Court of Session, and to the world, his circumstances, as they vary from time to time, for the better and for the worse; and that, on the other hand, the father is put under the necessity, if his circumstances change for the worse, of applying de anno in annum to the Court of Session, representing what that unfortunate change of circumstances is, and to publish them to the world, and then of calling upon the Court either to recall the allowance altogether, looking at the change of circumstances as operating a dissolution of the parental obligation, or looking at the change of circumstances as so far diminishing the extent of parental obligation as to call for a change favourable to the father. It should seem also, that if the parental obligation is to be looked at as founded on the law of nature, it must be regarded not only as an obligation between the father and the eldest child, but as an obligation which the father must be considered as being under to every child; and therefore, that in every case the Court of Session, if it is to determine what allowance ought to be made to the eldest son, must have some regard to what is the extent of the obligation which the father must be under in reference to every other person to whom he owes the same species of obligation; and that if it can be fixed in the beginning, for instance, of the year 1825, inasmuch as the parental obligation must require more or less according to the changes in circumstances of every other child in which the parental obligation is to be looked to, that must vary de anno in annum; and therefore, in truth, the question comes to be this, whether the Court of Session has a jurisdiction, on the application of a son, to take into its own hands, as between the fahter and that son, and the father and his family, all the duties of a father of a family; and to state that, upon application once made to them, the whole administration of that family may be placed under
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My Lords,—I should mention, however, to your Lordships what is the state of the property as given in under this defence to the Court of Session. In obedience to the interlocutor the defender condescends and states the particulars,—that the gross income amounts to L.19,513. 17s. 2d.; that from this there is a deduction, as therein particularly stated, of L. 8998.7s. 1d. upon the estate; that the true income, therefore, amounts to L. 10,515.10s. 1d. He then states, that the capital of his debts, the interest of which is stated in the account as a deduction, is L.29,576.19s. 11d. Your Lordships will permit me to observe, that it is the interest of this debt which is stated as a deduction; but the capital of this debt is what the father owes to the creditors, and the capital of this debt being a sum of L. 29,576, in considering this question, what is or is not a fit allowance, one should think it natural and proper to have regard to that fact, that the person who had that income owed a debt amounting to pretty nearly three years' gross income of his estate; and that, in considering what it was proper for him in a moral view as a parent to do in respect to his children, it was not altogether unfit to have it considered what in a moral view, as between the father and his creditors, he ought to do for those creditors when he is determining what he ought to do with respect to his children; and this the rather, because, unless I misapprehend the circumstances of this case, this gentleman has not the power of charging for those creditors one shilling of that capital upon the estate: and how far the Court, judicially determining what it is fit for a moral man to do, is to say, You shall not make a just provision for your creditors, but you shall make a certain provision for your children,—is a question which may admit, to say the least of it, a great deal of consideration.
Then he says, there are claims likewise for damages brought against him by the upper heritors on the river Tay, on account of the tenants of his salmon fishings having used stake-nets, and those are now in dependance: That there is likewise in dependance an action at the instance of William Maule, Esq. of Kilminny, against him for eviction of parts of his estate;—what parts of the estate those were in respect of which that action was brought, does not appear in the condescendence. Then he says likewise, that he was a cautioner for different friends to the amount of a great many thousand pounds, the effect of which it is impossible to estimate; and certainly one should apprehend some regard ought to be had likewise to the consideration of this fact.
My Lords,—When the learned Judges came to decide what was to be done upon this condescendence, they seem to have formed very different opinions. The mode in which this allowance was made by the Court, was represented at the Bar to be something like an auction. The Lord President says, “You have the condescendence by Mr Maule; the statement is acquiesced in; the free income comes to be clear about L.10,000 a-year;”—that is a proposition to
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My Lords,—This case will fall to be determined by reference to the Act 1491: that statute which has been referred to is the 25th statute of the reign of James IV. passed in 1491. The words of that statute are these:—(Here his Lordship read the statute).
This Act of 1491, I see, it has been contended, applied only to cases in which personal estates were in ward; and that has been insisted upon considerably, not only from what is in the beginning of this short statute, but more particularly from what is at the end of it; “and ane reasonabil living to be given to the sustentation of the air, after the quantitie of the heritage, gif the said air has no blanche ferme nor feu ferme land to susteine him on, als weil of the waird's lands that fallis in our Soveraign Lorde's handes as ony uther.” And it is contended, with a good deal of colour of reasoning, that if we had been talking in 1492, we should have said that this statute really meant only to provide for those cases in which an estate was in ward, and that there the person who had the estate in ward was to give a reasonable sustentation to the
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My Lords,—I may have occasion, in the course of what I shall have the honour to address to your Lordships, when we come to look at the text writers, and the cases on this subject—and many of the text writers treat on the subject,—and the cases being very very many upon the subject, all of them, to the best of my power, I have made a point of reading,—I shall have occasion to point out to your Lordships, from some of the cases which occur in the text writers, or the caes themselves, that they admit that the Court of Session have, in the progress of their proceedings, applied this statute as the rule of what they are to do in cases to which, as it appears to me, the statute has no reference, unless you can say they are in pari ratione, and on that principle, that you could so apply them. Give me leave to remark in this stage, that if we were talking in the year 1492, it could not be contended that Mr Maule the father has the estate of his son in ward, nor could it be contended that Mr Maule the son had a contingent fee, nor that Mr Maule the father was a liferenter of this estate, for he is the absolute feoffer of the estate, subject to what is contained in the deed of entail, as it seems to me; therefore, regard being had to what is the interest of the father in this estate, and what is the interest of the son in this estate, the question for your Lordships to decide will be, Whether this decision of the Court of Session is right upon the ground of any obligation that arises out of the settlement, or out of the nature of the estates which they might respectively be said to have ? if these are the proper terms to apply to a case where one has the whole estate, and the other (the son) will have a right to have the whole estate? or whether this decision is right upon the ground of the jus naturalis ? and whether it is right as to such doctrine as would obtain in any system of law, rather, upheld as the system on which the Court of Session is to act upon the jus naturalis of the son, as contrasted with the patria potestatis of the father ? for it may, perhaps, become a matter of some difficulty, of more difficulty I confess, as it strikes my mind, than it has appeared to those whose decision and whose doctrines I have had occasion to look into, how you are to infer either from the Act of Parliament, or by analogy from what you find, that in respect of persons who have estates expressly referred to in the Act of Parliament, or who have property which is not expressly referred to in this Act of Parliament, you are at liberty, pari ratione, to fix
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I think I have now stated to your Lordships enough to bring to your knowledge what the question is in this case. It is impossible to discharge one's duty without humbly calling on your Lordships for the application of a good deal of time to the consideration of stating what must be stated on the subject in matter of doctrine. I shall therefore conclude to-day, by only stating again to your Lordships, that the real question, as it appears to me, is this, Whether, in such a case as this, under the particular circumstances of such a case as this, the jus patriæ potestatis in this family no longer belongs to Mr Maule, but belongs to the Court of Session ? and whether, in the suit instituted by the son after he became major, there is this discretion to the Court of Session to judge, pro hac vice, what shall be done between the father and the son;—that the Court of Session has (what it must necessarily have, if this decision be right) a right to say from this moment, until either the father or the son shall drop into their graves, what is the extent to which the son is to have, or is not to have, a demand on his father to participate in the enjoyment of his property, regard being had to all the circumstances which affect that property? That is the question that your Lordships have to determine; and let it be remembered, it is a question which goes to all land-owners in Scotland, whatever distinctions may be taken between land-owners and claimants of money; for there is a distinction between land and money in this respect. It is a distinction which, when taken, may nevertheless affect monied property; and while that distinction has effect, it is a distinction which ought to be acted on, and it seems difficult to say, that many of the cases reported do not prove that the distinction has existed. I have looked into those cases, which are cases that require a good deal of consideration of another nature; for where your Lordships know, that, by the practice, there is a sort of discretionary right which has been declared in matters in Scotland as to the doctrines of trust, and as to portions of children, and in respect of many other matters which are rather considered in this country as matters to be decided in a domestic forum than in any Court of justice, we must take care, whatever our decision in this case is, not to touch much upon what may be called the established law of Scotland,—repeating again, as I did at first, that whatever might be your Lordships' opinion on the law as applied to this case in judgment, if it be the law, you must
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Now, my Lords, the author of this settlement that created Lord Dalhousie a liferenter on whatever estate he had, being the author of this settlement, might direct any payment he thought proper to be made to any particular object of his bounty,—that forms the law between these parties; and to argue from the instrument that creates the obligation upon a particular person to whom the bounty is given, the gift of the estate—to argue from that obligation, resting upon him by the express terms of the entail, that therefore an obligation of a like kind, though not of a like extent, should rest upon others who are to take the properties under the same entail, where no such direction is given, appears to me not a very conclusive way of arguing that question as to them. What obligations they are under, is not to be inferred from the obligation in the entail. Where there is an express obligation upon one person in a deed, but which omits to throw any obligation upon the other, it is very difficult to argue that the other was under the same obligation, as no such obligation was expressed in the instrument; and upon the papers before your Lordships, your Lordships will discover there is a provision about the heirs of taillie coming into possession of the peerage, and that this estate is to be divested when they come to the age of fourteen; and therefore, although there was no
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But, at all events, the question decided in these interlocutors must be a question that turns upon the law of Scotland, and not upon the rule given in this entail, as to the person with reference to whom no such provision is made; therefore, if the decision now in question is right, and I do not repeat to your Lordships the extreme importance of it as to family settlements, it must be right under the construction of the Act of 1491, or it must be right upon the doctrine of the patria potestas, the obligation that a father is under ex debito naturali, and the relation in which children stand to him by the jus naturale, to make or not to make such provision, as it is contended in this case has been adjudged ought to be made by a father for a son above the age of minority, or a gentleman having a commission in the King's service, and having an allowance to the extent I have mentioned on a former occasion from that father; and I would observe again, upon the terms of these interlocutors, that they direct the father to give in an account of his free income: Now, if the Court has a jurisdiction to say that a father shall, during the joint lives of himself and his son, make such an allowance to that son, not as he the father thinks right, but as the Court of Session think right and suitable to the rank and fortune of the father, and the expected rank and fortune of the son, it does appear to me there ought to have been a great deal more inquiry made as to what constituted the free income of the father; because, if the father is by the jus naturale bound to provide for one child, he is bound to provide for all his children; and he is bound, not by the jus naturale, but by every moral view, to take care of his creditors. He must attend to all his relations in life, to know the extent of the obligation resting upon him that arises from any one particular relation. And accordingly it must be quite obvious, that if the Court has jurisdiction in 1824 in the case of a father having an eldest son, who had attained his age of majority, and eight or ten other children in their minority, but who may, from time to time, in the course of that minority, require, for the purposes of education and sustenance, more and more from the father, where the demands are increasing upon him from time to time,—in order to see if you have this sort of jurisdiction, as what is right between the father and son, you must judge what obligation the father is under as to all the others, upon the same principle upon which a son, as a son, can form a demand upon a father, as a father. I observe in the reasoning upon this, there is a great mixture of the consideration as arising out of the Act of 1491, and the jus naturale; it becomes necessary therefore just to put your Lordships in mind again, that Mr Maule is not a liferenter,—that Mr Maule is not a person having an estate in his possession which may be said to be in ward.
The Act of 1491 runs in these words:—(Here his Lordship read
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My Lords,—It is impossible, I think, not to perceive and to feel, that in arguing a case where a father is neither liferenter, nor has an estate in ward, that the principles of this Act of Parliament, which have been alluded to as furnishing something of a rule as to the nature and extent of the obligation that arises from the rights and duties of a parent, and as applying to the patria potestas, has no relation to a consideration of that kind: and I cannot help feeling what is stated in one of the cases under the head of aliment, (Lyon against Gray, 16th January 1712), that Sir George Mackenzie, in his observations on that Act of Parliament, reasons against the extensions that have been made of the doctrine with great freedom; that the decisions on which the authority rerum judicaturum stands, have not been uniformly one way: but this is the fate of all decisions that arise from no certain principles of law; and as to such, all occasions are to be taken to restore them back to the true principles of justice and equity. In truth, that may be said of all judicatures; and therefore I desire not to be understood as applying this observation to the judicatures of Scotland alone: but there certainly have been very considerable stretches of authority adopted with reference to Acts of Parliament, the language of which is quite clear as to the cases to which those Acts ought to be considered as applying; for instance, here to the case of an estate in ward, or taking the Act to apply to a life-renter, or the heir of the heir of a liferenter, you have reasoned upon the principles that the Legislature have applied to those particular cases, to form rules and adopt measures which such Acts of Parliament by no means authorized you to adopt: and I cannot help, therefore, thinking, that in the present case the question before your Lordships is this, whether, under the circumstances of the present case, regard being had to all the decisions you can find—taking this case as a case between father and son, as a case where the father is not a life-renter, where the father has not the son's estate in ward, but where the limitation of the estate being to the father and the heirs-male of his body—you can apply those principles that have been applied in the construction of the Act of 1491, to a case in which it seems to me the obligations to be fixed upon the father are obligations which must be taken to arise from the jus naturale, and not from the circumstance that
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My Lords,—To state that there are not cases—nay, not many cases—which go to shew that, upon some ground or other, jurisdiction to this extent has been assumed, is a great deal more than can be alleged. On the other hand, if you look at the cases, taking them altogether, the impression upon my mind is extremely strong, that they are very contradictory in this respect. I think you will find a case in which a person, placed in the military service, was held to be provided for; and there is a case applying to a gentleman at the Bar, where a mother having brought her son up to the Bar in Scotland, after he was an advocate,—I think it is the case of a mother and son, but it makes no difference,—he applied to the Court of Session to call upon her to give him aliment, which they did. We have sometimes heard—I dare say there is no truth in it—that when questions formerly arose in our Courts upon dower and courtesy, it was asked, how comes it that the husband has courtesy upon the wife's equitable estate, but the wife has no dower upon the husband's equitable estate ? The only answer that has been given to that is, that the Judges were males and not females; and, therefore, they decided in favour of themselves when they decided against the other sex. Whether that had any effect upon the Judges in that case, I cannot undertake to say, but they give a reason perfectly founded in truth for what they do. They put that case upon this—and I know it in my own person to be perfectly true—that if a gentleman bring his son up to the Bar, in as much as the race is not always to the swift, nor the battle to the strong, there is many an advocate,—I do not say of myself the few
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My Lords,—See how it is reasoned with respect to the persons in different situations of life. It is said, that a father who brings his son up to the army, must make such a provision for him as will enable him to travel all over the world to see the works of art—foreign countries: He must be a great mathematician, and learn every thing,—that his father must be at the expense of all that. They say indeed, (and here I cannot agree with them), that the law is learnt all at once, but that military service cannot be learnt except in a long course of years. I do not know how it may be as to Scotch law, but I have been very nearly fifty years in learning English law; and if I am to admit the justice of the remarks of other persons who know very little of law, but are very ready to express their opinions,—if I am to accede to their opinions, even at this period I know very little of it,—that I have forgotten a great deal of it is most certain,—but I cannot agree that a legal education may not require as much time as a military education. Of the one I know a great deal,—of the other I know nothing except when I had the honour of being a volunteer in the Lincoln's Inn corps; but it does appear to me from what I do know of it, that I could learn to be a soldier much sooner than I could learn to be a lawyer; and therefore I take the liberty of differing from the learned Judge who has expressed that opinion. But, upon the whole, it does appear to me, that the circumstances do not authorize the Court to go to the extent that they have gone. To go through the whole of the cases would be only reading to your Lordships the decisions that are to be found in the books,—the question is, whether it is possible for you to say, that a Court of judicature is to take upon itself, in a case circumstanced as this case is—and I desire to have it again expressed, that I confine my opinion to this particular case, and this particular case only, taking leave to say that I do so, because, though I find a great many cases that go much farther, I think, than in
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The question in this case is really whether, by the law of Scotland, a child can by this suit compel a parent to make an allowance for the maintenance of that child ? and supposing such suit can be instituted, and the parent can be so compelled, in what circumstances, and to what extent, that is to be done?
My Lords,—This has been argued upon two grounds,—the moral
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My Lords,—There has been a considerable allusion to what is the doctrine of the civil law. As far as I have been able to look into the doctrine as laid down by the writers upon the civil law, the writers of various parts of Europe, they all lay down the same rule,—that all that a parent is obliged to do is to take care that his child shall not be indebted to the charity of others; that the charity belongs to him, and that he shall not throw the burden upon others. My Lords, that that may be different as to persons in different circumstances, and in different situations in life, is perfectly true. Suppose a person of high rank is without the means of maintenance, and he is thrown upon the charity of others, the amount of that charity will be very different in that case to the amount of charity that in such instances would be bestowed upon the child of a labourer; but that is the whole difference according to what I can collect either from the civil law or the commentators upon the civil law, and other writers, or the text writers upon the law of Scotland. That this case goes infinitely beyond that is unquestioned, for the provision made by Mr Maule for his son was purchasing for him a commission in the army, and an allowance of L. 100 a-year. Is it possible to say, under those circumstances, the son is in want? Prima facie there is no obligation to go beyond that. Upon what is the obligation to go beyond that founded in this case? Upon the extent of the father's property; and for that purpose the Court goes into a minute inquisition as to what is the income of the father, as the noble and learned Lord has observed. They have not entered into an inquiry what are the other obligations of the father, although it should appear to your Lordships he is in debt to the amount of L. 30,000, for which he has not any means of payment but his interest in this estate, which
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The statute 1491 has been observed upon in this case in a most extraordinary way; it is most clear, that it has no relation whatever to the case of a liferenter. It has no relation whatever The title of the statute is—though I believe the title is not a part of the statute—the title is, “The wardator sall not destroy the landes, he said susteine the minor;” and it is ordained, “that where any land or landes happen to fall in ward to our Sovereign Lord, or any other Baron of this realm, spiritual or temporal, or lands given in conjunct feofment or life-rent he shall maintain the minor. Therefore this title shews, that the person who corrected this statute, and gave it this title, meant the maintenance to apply to the wardator, that is, the person who had the lands of the minor in ward, and by the very law which gave him a right of ward, compelled him to sustain the minor: it was as much an obligation upon him to sustain the minor, as it was under the entail of this estate for Lord Dalhousie to sustain Mr Maule; it was part of the law under which the wardator held the lands; and therefore to say that, by the language of this statute, the liferenter is to maintain a person who is no relation to him—for that is the reasoning, that if the person is liferenter of an estate, the next taker is entitled under this statute to maintenance—is the most monstrous misconstruction of an Act that was ever brought under the view of a Court of justice; it is clearly so treated by the ablest writers, and particularly by Sir George Mackenzie.
My Lords,—Only conceive what is the consequence that would arise from your affirming this decision. Would you not give a ground for every child in Scotland to call his father to an account for not making a sufficient allowance, and to compel the father to disclose all the circumstances of his own affairs, my Lords? a disclosure that might be attended with very mischievous consequences to him?—compelled to do more in many cases, perhaps to disclose all the misconduct of his son, which might shew that the very embarrassments of the father had been produced by the misconduct of the son, or by the misconduct of other children; and a variety of circumstances which really make this appear to me one of the most dreadful cases that can be conceived. I am bold to say, that if this is the law of Scotland, I should be sorry to be under the dominion of the law of Scotland. But I take it not to be so. I take it that the statute has nothing to do with the subject. I take it that the decisions, contradictory as they may be, are against what has been laid down in this case; and that all the text writers upon the subject hold doctrines extremely different from what has been held in this case.
My Lords,—Looking at what has been attributed to have fallen from the Judges in this case, I think it is impossible not to feel the greatest regret that any such expressions should have passed; because it strikes me, that if you are to attend to all the circumstances that
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Appellant's Authorities.—3. Ersk. 9. 16, 17.; Kaimes' Pr. Eq. p. 80.; 25. Voet, 3, 4.; Maidment, May 27. 1818; 6. Dow, 259.; Mack. Ob. p. 101.; Moncreiff, Jan. 27. 1736; 3. Stair, 5. 3.
Respondent's Authorities.—Dig. 25. 3.; 1. Stair, 5. 7.; 1. Ersk. 6. 56.; 1. Bank. 6. 13.; 4. Bank. 45. 17.; Dick, Jan. 13. 1666, (409.); Aytoun, July 25.1705, (390.); Ramsay, July l. 1687, (391.); Adam, March 1662, (398.); De Courcy, July 3. 1806, (No. 8. Ap. Aliment); 2. Craig, 17. 20.; 25. Voet, 3. 3.
Solicitors: J. Campbell— J. Richardson,—Solicitors.