Sheriff Mr Henderson
A. Kermith or Taylor, and Curator of litem, Pursuer
W. Taylor, Annfield Road, Dundee, Defender
Husband and Wife - Separation- Ailment, held that a husband living in lodgings must receive his wife there and maintain her, notwithstanding allegations of her previous misconduct in displenishing their own house; and awarded to the wife accordingly.
This was an action at the instance of a wife against her husband, wherein the summons concluded - Therefore the Defender ought to be discerned to pay to the Pursuer the sum of £13 Stg, yearly in name of aliment in respect of the Defender refuses to live in family with the Pursuer, his said wife or to support, and has left her without means of subsistence - payable said aliment weekly and in advance.
Upon the 7th May, W. Taylor pled in defence that sometime previous to the end of September last, the A Kermith or Taylor & W. Taylor lived together in Annfield Road Dundee with their child; The A Kermith/Taylor abandoned the defenders house and his society, he had to take lodgings for himself and child in his mother’s house.
The A. Kermith -Taylor was allowed to take her belongings from his house in Annfield Rd, but completely emptied the house of every article of furniture belonging to the defender. That the W Taylor is presently out of employment and the average weekly wages as of a twine-maker does not exceed 12s.which has to support himself and child, while his wife, being an able- bodied woman is quite capable of providing for herself.
The record was closed on Summons and Defences on the 7th May 1956 W. Taylor lodged the minute and his wife on the 29th Oct. 1956 to lodge a counter minute.
Dundee 5th Nov 1956. The Sheriff - Substitute. Now stated on part of W. Taylor as he is only a lodger, is unable to receive back his wife and support in family with him.
Signed John L Henderson
“Edinburgh 26th Nov 1956. The Sheriff having considered the reclaiming Petition for A. Kermith-Taylor in support of her appeals and having also considered the whole proceedings refuses the prayer of the said petition.
Edinburgh 26th Nov. 1956-The Sheriff having considered the Reclaiming petition for A Kermith -Taylor in support of her appeals and considered the whole proceedings. Refuses the prayer of the said petition, in so far as it prays to have the defences repelled de Plano and to that extent dismisses the said appeals, and in respect of that. W Taylor expresses his willingness to admit his wife into the place where he lives, and to offer her such accommodation as he himself receives it is stated on 5th Nov. currant that as he is only a lodger with his mother he is unable to receive her back, on 20th Oct last she offered herself back and was refused.’ Note -to pronounce decreet against husband for ailment.
Dundee 22nd Jan. 1857. The sheriff substitute having heard parties’ procurators orally taken under the remit contained in the sheriff’s last interlocutor 26th Nov last, that discreet must now be pronounced against A Taylor for ailment to A. Kermith or Taylor. Finds it stated in the defence that W. Taylor weekly wages only average twelve shillings, out of which he has to support himself and child; Finds that A Kermith or Taylor has not attempted or offered to prove that the said sum is less than W Taylor’s earnings actually are.
Therefore, modifies the ailment to be afforded by W. Taylor to his wife.
A Kermith the pursuer at three shillings per week; and for this sum decerns against the defender W. Taylor at the instant of the pursuer his wife A Kermith or Taylor-payable and with interest as included to modifications; allows an account thereof to be given in, and remits the same when lodged to the auditor for taxation and report - signed John I. Henderson
The defender rested satisfied with above judgment without appealing to the Sheriff.
P.P. Aitken and Peter Reid, Agents
Page 228 - FORFARSHIRE - DUNDEE
Mr Sheriff Logan
Henry Jace, Inspector, Dundee, Pursuer
John Gardyne, Shipmaster, Dundee, Defender
Assessment- Means and Substance. Held that, in a parish where the assessment was levied on means and substance, the master of a ship sailing Wherever a cargo offered was liable in Poor’s assessment as an inhabitant of the parish where his wife and family resided, notwithstanding the freights of the ship were carried beyond the parish.
The parochial Board of Dundee raised an action against John Gardyne a shipmaster, for £2.13.8d. Of poor rates. The assessment in the parish of Dundee in under the third mode authorised by the Poor Law Act. Viz, an equal percentage on the rental and on the means and substance of the inhabitants. Mr Gardyne was included in the roll as liable for means and substance, but denied liability, and an action was brought for payment. The case was fully argued orally before the Sheriff, and the following interlocutor embodies the facts and circumstances of the case, &c.-
“Edinburgh, 15th Jan 1955- the Sheriff having heard parties’ procurators on the summons at the pursuer’s instance whereby he concluded against the defender for payment of £2. 13s. 8d of poor-rate, under an assessment and supplementary assessment for the years 1854, repels the defence and decerns against the defender for payment of the said sum. And in respect that the pursuer declined to ask for expenses due
Signed A.S. Logan
Note-It was stated at the discussion before the Sheriff that the present case was of general importance having been brought to determine the liability or Non-liability of a numerous class of persons connected with Dundee, and whom it was sought to subject in payment of poor-rates and inhabitants of that place
It was agreed at the discussion that fowling should be assumed as the true circumstances of the case: -
The defender is the master of a merchant vessel sailing from Liverpool, His wife and family reside in Dundee, where they occupy a house of which he is a tenant, and in respect of which he is assessed in the books of police. He himself regularly follows his avocation as a mariner and visits his wife and family in Dundee only on occasion as these Avocations may permit.
The terms of the 47th section of the Poor Law Amendment act (8 and 9 Vic., c 83)
Were relied on the defence, and from these it was attempted to be argued that the only means and substance derivable from the trade and business, which were subject to poor-rate, were such as were derived from trade of business “in any premises within such parish of combination;” and that, as the defender’s means and substance were obtained from a business conducted on the high seas or in Liverpool - at all events not in the town and parish of Dundee-he could not be subjected to the pursuer’s demand.
But that action of the statute has no sort of application to a case such as the defenders. It was meant to meet a class of cases such as that of Buchanan against Parker, 21st Feb., 1827, and Morris v Orr 11th Dec 1940.as to which doubts existed which gave rise to litigation hos far a person living in one parish and having a business within another parish was liable for assessment the latter parish in respect and substance arising from such business To meet such cases as these, it was by the section of the Act in question, enacted “ That if in any parish or combination, in which assessment is impose on means and substance, any company or any individual shall occupy any lands or heritages, of shall carry on in any trade or business in any premises within such parish or combination on their derived from or relating to such occupancy, trade of business, although none of the partners of such company no such individual should be actually resident in such parish or combination.
The defender’s case falls to be ruled by the 34th section of the Act of Parliament, whereby, in relation to the third mode of assessment mentioned by the Act. Power is given to the Parochial Board “to resolve that such assessment shall be imposed as an equal percentage value of all lands and heritages within the parish or combination, and upon the estimated annual income of the whole inhabitants situated in Great Britain & Ireland.
The assessment in so far as concerns means and substance, being thus laid on “the whole inhabitants” the question comes to be, Is the defender of is he not and inhabitant of Dundee Now unless the sentiment to the popular song is to may be taken as the solar fact of the case, “that the sailor’s only home is his ship” Mr Gardyne must be dealt with as an inhabitant of Dundee. It is not said that he possesses a house anywhere else, and there it is admitted that he has a house, to which he has attached the character of home but the least ambiguous and most effectively attractive of all acts, namely, by making it the constant residence of his wife and family. When away from it during those inevitable absences which hi profession compel, he must necessarily look toward it as the place to which duty, inclination and affection alike impel him to return, and wanting which he could consider himself a wanderer on the face of the earth. Of Dundee, therefore, within which his house, his home, is situated, the defender must be regarded as an inhabitant, for no other spot within or without the Kingdom does he inhabit in half so real a sense or with consequence half so substantial.
Pursuer’s agent, Mr William Hay. Defenders’ agent Mr James Pattullo
Page 547 - FORFARSHIRE - DUNDEE
Sheriff’s Henderson and Logan
A Robertson of Anderson, Dundee Pursuer
Her Three Sons, residing there, Defenders.
Alimentary Action - Relatives able to Support, held that a woman fifty - four years of age is not from that cause alone, entitled to an ailiment from her lawful children, although they are able to maintain her, and a summons for ailment, which is set forth no other grounds of action, dismissed as irrelevant.
This was an action involving a point which seems to have already had the attentive consideration of the late Lord Justice-Clerk (Hope0, and through him the attention of the whole Supreme Judges. In Dallas v. Mann, June 14, 1853, Jurist, vol., 25, p. 448, his lordship is reported to have said- “We have considered the whole Judges, and are prepared to lay down a general rule in regard to the question which arises in this case. The rule is, that in everything which is of the essence of the action, whether in the averment of white is a proper ground of action, the summons and condescendence must be complete ab initio, and that no change can be introduced into the revised condescendence which alters the summons - or annexed condescendence, which is a part of the summons - in such matters”. It was announced that this rule was to apply to the Sheriff Courts as well as the Court of Secession.
In the preface to Clerk Home’s Reports appears the following passage which has a bearing on the subject - matter in hand -” Decisions upon arbitrary points of form, and such like, ought to have the utmost weight and authority, for, with regard to matters of this nature. It is of great importance that there be a fixed rule publicly known.”
The summons in the action now reported concluded as follows - ” Therefore the defenders, as the lawful sons of the pursuer, are liable for her support and maintenance ought to be decerned conjunctly and severally to pay to her the sum of 7s 6d sterling weekly, of such other weekly sum, more or less, as shall be found reasonable, in name of ailment to the pursuer, who is fifty-four years of age - commencing the payment of the said sums of ailment as the date hereof for the first week, and continuing the payment thereof weekly and in advance thereafter; with legal interest of each weeks ailment from the respective times at which the same will become due till payment with expenses.”
The defenders lodged defences and set up a preliminary plea if these terms - “The summons id irrelevant and insufficient, and ought to be dismissed, in resect no sufficient or relevant ground of action are set forth therein - in not being averred that pursuer is in bad health, or that she is unable to earn her own substance.” On the merits, among other things pled there were allegations to the effect that the pursuer was able-bodied and capable of earning her own substance, and was assisted by a daughter residing with her--that she had got in 1844 £70 from her husband’s estate besides household furniture - that in September 1856, she got £18.18s, and another £1,19s from her husband’s estate--all which sums were squandered in a reckless and foolish manner--that two of the defenders, bricklayers, were married men, with families of their own to support, and were unable to contribute anything to the support of the pursuer and that the third defender was a miner and only at his apprenticeship--that in any view the ailment was exorbitant and excessive.
The record was closed on these pleadings and debate thereafter took place when the defender strongly urged the Court to dismiss the action as laid.
The sheriff-Substitute (Henderson) on the 25th June last promised the following interlocutor; -
Dundee 25th June 1857,- Having heard parties’ procurators on the preliminary plea for the defenders, to the effect that the summons is irrelevant in respect no sufficient grounds of action are set forth, Finds that the summons sets forth the relative position of the parties--the defenders being the lawful sons of the pursuer--and also states that the pursuer is 55years of age; Therefore Repels the said plea so fa as preliminary, reserving any effect it may have as a plea on the merits: Farther, on the motions of the pursuer, allows the parties a proof of their respective averments in the closed record, in so far as not admitted, and to each of the parties a conjunct probation.
The defenders appealed, and the Sheriff and the Sheriff (Logan) dismissed the action by the following interlocutor, and appended likewise a note explanatory of the grounds on which the interlocutor was based: -
Edinburgh, 29th June 1857,--The sheriff having advised the appeal for the defenders and having considered the summons and defences, Sustains the said appeal, and recalls the interlocutor appealed against :Further, in respect that the summons fails to set forth any grounds relevant, or in law sufficient to infer conclusions, Sustains the first preliminary plea for the defenders: Dismisses the action and decerns : Finds the defenders entitled to expenses, whereof allows an account to be given in, and remits the same when lodged to the auditor for taxation and report .
Note – The Sheriff cannot sanction the reasons assigned by the Sheriff-Substitute for repelling the first plea for the defenders, which suggests that the summons is irrelevant and insufficient.
The reasons are - (1) that the summons has set forth that the defenders are the lawful children of the pursuer; and (2) that she herself is 54 years of age.
Now, the combination of these two particulars cannot be recognised as constituting a sufficient ground for a demand for ailment by a mother against her own children, unless by affirming as a universal proposition good in law, that every mother of lawful children is, provided only the she is 54 years of age, entitled to be supported by them. But for such a proposition there is, is no foundation whatever. The claim. Of apparent for ailiment from his children is based exclusively on the destitution of the parent; and where there are no destitution (which must be assumed when destitution has not been even alleged). There is of course no claim.
The sheriff was at first inclined to exercise the authority conferred on him by statute, by opening up the record and allowing an amendment of the libel: but on further consideration he decided against taking that step --the inducement being a desire to discourage a slovenly and inconsiderate mode of pleading which is beginning to prevail, and which apparently has its origin in some loose notion that, because a summons must now be brief, it may also be without logical precision or legal collusiveness.
Page 617 - SHERIFF COURTS - FORFARSHIRE
Sheriff’s Logan and Henderson
Alimentary Claims -- Prescription --Agreement--Discharge, Action having been instituted for ailment and arrears of ailment of illegitimate children, questions raised-- (1) Whether triennial prescription applied to such claims?
(2) Whether, when objections taken to certain written receipts, parole relative to the subject matter of them could be allowed? (3) Whether a discharge of an action and the subject-matter thereof written on stamped paper, but signed merely by a cross of the granter, who could not write, was good and valid?
(4) Whether the consent of agents to dispense with a provision in the 16th section of the Sheriff Court Procedure Act. Was sufficient reason for the Court not enforcing the precisions of the said Act of parliament?
This was an action of filiation the summons in which is dated the 10th April, 1856. Arrears of ailment were pursued for.
(1) as to a male child born on or about 27th July 1848, and which child died on 29th August,1849. (2) as to a male child born on or about the 13th May 1851, and which child died on 29th January 1852
And (3) aliment for a female child born on or about 24th June 1853.
The defender had paid certain sums of money to the pursuer, and she applied them partly to account of the arrears of ailiment for the children who had died as well as towards the ailiment of the child which remained alive.
The defender complained of this method of acting, because he denied that he was the father of the two first children, and his defences contained the two following pleas-- 1st. As to the first demands prescription and a denial of paternity; (2) as to the second payment made to the extent agreed on between the parties.”
The sum alluded was 1s 6d a week of ailiment.
The record was closed on the summons and defences on 30th April 1856.
An oral debate having taken place before the Sheriff Substitute, the defender denied that ever any payments had been made on account of the first two children, of whom he denied being the father--that certain payments were made on account or the third child, and that No7 process showed that 1s 6d a week was agreed to be taken--that before any proof was allowed it would be necessary for the Court to determine the effect of the document No 7 process and to dispose of the plea of prescription. The defender cited Macallan’s Erskine, p.806 and footnote thereat “4” The pursuer’s agent on the other hand, contended that prescription did not apply, and cited more modern authority--viz., Thomson v. Westwood, 26th February. 1842 (14) Jurist p. 286) dwelling principally on the speeches of Lord Justice Clerk and Lord Medwyn in that case and concluding that as, as parties were at issue as to the facts, a proof was necessary. The case having been taken to avizandum; the following interlocutor was pronounced: -
Dundee 12th June 1856; --The sheriff-Substitute having heard parties orally on the closed record and the whole process. In respect to the parenty of the two children mentioned in the first and second articles, libel is denied. Allows the defender a proof tending to establish said paternity, and to the defenders a conjunct probation; meantime, and until such proof is taken and the point of paternity decided reserves consideration of the plea of prescription; Further, with regard to the third child mentioned in the libel, having heard the motion for the defender to be allowed a proof of his averment that the pursuer agreed to accept a lower rate of ailment than that sued for, in respect the paternity of said child is admitted by the defender, and that payments toward the ailment thereof have been made by him, and respect the ailment sued for is in the circumstances moderate and reasonable, refuses to grant the desire of the defenders said motion, and finds the defender liable to the pursuer in the inlying expenses , ailments, and interest third concluded for in the libel - for which decerns against him at the interest of the pursuer and interim.
(Signed) John L. Henderson
Note: - Should the pursuer fail to prove paternity of the first two children, then the question of prescription will not arise. Hence the Sheriff-Substitute has the question till prof is taken.
The defender appealed, and in support of the appeal lodged a Reclaiming Petition, wherein he again cited McAllend’s Erskine and Bell’s Commentaries, book 3d, sec., 1354. The following passage appears in the petition, to which the under quoted note of the Sheriff has reference: - “As to the two children now dead the defender has pled prescription and denial of paternity, and he humbly thinks that the plea of prescription is available to him, not only as regards the question or, in other words its constitution”. The Sheriff did not under this petition to be answered, but pronounced the following interlocutor, to which he added a note: -
Edinburgh, 14th July 1856,--The sheriff, having considered the reclaiming petition for the defender in support of his appeal, and having also considered the closed record and whole process, adhered to the interlocutor appealed against, in to far as it allows a proof to the pursuer, and to the defender a conjunct probation, in regard to the alleged paternity of the two children first mentioned in the summons; and for thus far dismiss the appeal: Quoad ultra sustains the appeal, and recalls the said interlocutor Finds that the claims by the mother of an illegitimate child against the alleged father for contribution by him towards the aliment thereof does not fall under the Triennial prescription; and: and, in respect of this finding, repels the defenders plea founded on the said prescription; Further, finds it alleged by the defender, in regard to the third child mentioned in the summons, that the pursuer agreed to accept in respect of its Aliment the sum of 1s 6d weekly, and that the said allegation, if verified by evidence, is relevant to free the defender from liability for any other and higher rate of aliment: Therefore allows the defender proof of the alleged agreement, and to the pursuer a conjunct probation; and remit’s the cause to the Sheriff-Substitute to have the proof hereby allowed taken with all possible dispatch.
(Signed) A.S. Logan
Note - It being very clear that the defender is entitled to a proof of the special agreement alleged by him in regard to the aliment to be allowed for the third and admitted child, which agreement, if proved, must obviously relieve him of any higher rate of liability, the Sheriff has not put the pursuer to the trouble or expense of answering the defender’s reclaiming petition on this point.
Neither has the Sheriff felt called on to wait until pursuer should present him with an argument against the reservation of the defender’s plea founded on the triennial prescription which plea was reserved by the Sheriff-Substitute; against this reservation the defender has strongly contended to lead to difficulty and further discussion at a later stage of the cause. The Sheriff, besides assenting to this view has an objection to the reservation founded on a still stronger ground, viz., that it is now quite settled that the mother’s claim for ailiment, or rather her claim to be proportionably relieved of the burden of supporting an illegitimate child, does not fall under the Act 1579.c 83 True, it was otherwise decided in the case referred to by the defender (Forsyth v. Simpson, 1791: Morr. 11081).
But the decision is no longer law; and it may now be held as a settled matter that such a claim is not subject to the triennial prescription (See Finlayson v. Gowen, 7th July 1809. F.C.; and Thomson v. Westwood, 26th February 1842, 4 Sess. Report, 833)
This disposes of the plea of prescription in so far as it was set up against the pecuniary demand; whilst of course, it never was decided (neither so far known was it ever contended) that the demand to have the paternity of an illegitimate child ascertained was struck at by any legal limitation whatever
The defender after this Interlocutor appears to have gone to the pursuer with a discharge extended on stamped paper, and to have got her to sign with a cross, without the presence of her agent, on the 20th October, 1856. In consequence, an oral debate ensued as to the invalidity of this discharge - the pursuer’s agent contending it was worthless and might be set aside by exception, and the defender’s agent maintaining that it was good until cut down by a regular reduction, and could not be touched by way of exception This interlocutor was pronounced -Dundee, 22nd January, 1857, - Having heard the parties’ procurators on the discharge ( No 11 process ) the agent of the pursuer contending that said document was irregular and had been improperly obtained and moving to be allowed a proof of this allegation, In respect that the said document is ex facie regular, is attested by witnesses, and has been recognised by the pursuer’s agent in the minute No 10 process, refuses the said motion.
(signed) John I. Henderson
The pursuer appealed and in support thereof lodged a reclaiming petition, which was however beyond the time allowed by the 16th section of the Sheriff Court Procedure Act. To cure the defect the defender’s agent consent to receive and have it judged of was given, but the depute-clerk of court felt constrained not to mark it as lodged, and the Sheriff approved of this, and pronounced the following judgment, issuing at the same time a note: -
Edinburgh, 10th February, 1857,-- the Sheriff having observed that the reclaiming petition of the pursuer in support of her appeal was not tendered until the 4th current, whereas the appeal was minuted on the 23rd ultimo, declines to look at the said petition, the same not having been lodged in terms of the 16th section of the Sheriff Court Procedure Act, and the incompetence and the arising being incapable of being cured by the consent of the opposite party, or otherwise; Further, having advised the appeal itself, sustains the same, and, in respect that the alleged discharge by the pursuer (No 11) not being subscribed by the party whose writ it purports to be, and not having been executed according to law as a writ of a person who is incapable of subscribing, can bear no faith in judgment. Recalls the interlocutor appealed against and obtains the said alleged discharge to be withdrawn from process.
(Signed ) A.S. Logan
Note. --It is possible that a party appealing, who has failed in due time to lodge a reclaiming petition of move for an oral hearing in support of his appeal may be able to satisfy the County that the failure has risen from circumstances beyond his control, and so obtain special permission to have the consequences of the failure in somehow redressed. But assuredly, this cannot be done merely by the consent of the adverse party to admit the petition or the motion; and the clerk of Court in the present instance acted with perfect propriety in refusing to mark the reclaiming petition of the pursuer.
2. The discharge, ordered to be withdrawn from process, is not worth the paper on which it has been written. It affords no evidence either that the pursuer has consented to discharge the action, or (supposing that she has done so) that she was fully aware or the consequences of the set, and it ought to be borne in mind by all litigants who consider it right and proper to deal with an opponent out of the presence and without the advice of his agent, That there is but one mode of executing a deed for a person unable to write---a move which necessarily implies the presence and Approbation or a duly skilled and (it is to be presumed) honest and conscientious professional man. Vide Graham V. McLeod 30th November 1848; Sess., Rep 173, the decision in which case proceeded upon a ratio as old as the law of Scotland itself.
After this the defender agreed to pay the pursuer’s agent certain sums of expenses, and to pay the pursuer aliment as agreed on, and the case was taken out of Court by a Joint-minute, followed by the following interlocutor: -
Dundee, 4th March 1857, - on the mutual motion of the parties allows the joint-minute for them now tendered to be received; interpones the authority of the Court thereto; and decerns st the instance of the pursuer and her procurator and agent disburser, Nr Scott, against the defender, in terms thereof.
(signed) John L. Henderson
Page 670 - DUNDEE
Sheriffs Henderson & Logan
Relation bound to Support ---Illegitimate Child, held that an illegitimate son being able is bound to support his mother.
This was a case where an illegitimate son was pursued by his mother for ailment, the summons concluding as follows: - Therefor the defender who is an illegitimate son of the pursuer, and who was brought up and maintained by her during his youth, of partially so, ought to be decerned to pay the pursuer, his mother, the sum of 3s 6d. Weekly, in name of ailment, and for her support and maintenance, she being unable through ill health, infirmity, and age, to secure a maintenance to herself - payable ,said ailment, weekly, and in advance, commencing the first week’s payment thereof as at the date of this summons, and so on thereafter weekly in advance so long as she shall continue unable to earn her own livelihood, with interest at the rate of 5 per cent, per annum on said weekly payments from the date when they respectively became due till paid with expenses
The defence set up was - (1) That the action was incompetent, in respect the vague nature of the conclusions of the summons would render any decree in terms thereof indefinite, and implacable in in its working; (2) The defender being illegitimate, was not liable to the pursuer for any ailment she might require for her support and maintenance, (3) That the defender had not been brought up and maintained by the pursuer during his youth, or partially so, with the exception that she took charge of him in a very different way for the first six months of his life. (4) That the pursuer was not unable through ill health, infirmity, and age to secure a maintenance to herself; (5) that the pursuer had, and still has, at least one other illegitimate child, a daughter, who is married and resides in Dundee, and who was as well able as the defender, to the pursuer, if she to give ailment if she required any. (6) that the defender’s constitution was weak, and ill health and infirmities prevented him working steadily his trade, even when employment was good and could be got--- that he had a wife to support, and from that and other causes he could not afford to the pursuer ailment though she required it; (7) that, in any view, the amount of ailment sued for was excessive, being more than the pursuer required, and more than the defender was able to pay.
The record was closed on summons and defences, and, after some discussion, the following interlocutor was pronounced by the Sheriff-Substitute, disposing of the most important legal points in the case: -
Dundee 10th April, 1857.-- The Sheriff-Substitute having, in terms of the Sheriff’s interlocutor or 3d April current, heard parties’ procurators orally on the second plea for the defender, and made avizandum with the debate, finds it not disputed that in this case the defender is the illegitimate son of the pursuer, and the point involved in the second plea-in-law is , whether the defender is bound to support his mother if it shall be established that, from her poverty, she is unable to support herself; Finds that an illegitimate son is bound in law to support his indigent mother, and therefore repels said second plea-in-law for the defender, and decerns.
Note---For the authorities upon which the above the interlocutor is pronounced reference is made to Fraser and Domestic Relations, vol.2, p. 51 and to the decision of the Sheriff of Aberdeenshire in the case of the Inspector of the Poor of Inveravon v Raeburn., and to the authorities therein referred to..
The defender having simply appealed, the Sheriff (Logan) pronounced the following judgment: -
Edinburgh 5th May 1857. - The sheriff having considered the defender’s appeal and having also considered the summons and defences. In respect to that it is admitted that, though illegitimate, the defender is the son of the pursuer, dismisses the said appeal, and adheres to the interlocutor appealed against.
Note, - Mr Frazer’s excellent work on “The Law relating to domestic and personal Relations” is stated (vol.2, p. 51) that it is unsettled whether a bastard is liable in ailment to his parents.
This is true to the effect that probably the question has not yet been determined by any decision of the Supreme Court. But. Looking to the legal principle and to the analogy of other cases. The Sheriff does not consider it to be doubtful that an illegitimate child is liable to support an indignant parent, whether father or mother - assuming always the father that the paternity either has been judicially ascertained or is not disputed.
The present claim is made by a mother, and the defender does not deny that he is her son. Now it is an undoubted rule of law that both the parents of an illegitimate child are bound to support each child - the obligation not being confined to the infancy or pupillarity of the child but extending to his full age, provided he be infirm and incapable of supporting himself.
Anderson v Kirk Session of lauder 11th March 1848; 10 S, Reports, 960.
This obligation has its source in a rule of the law of nature, sanctioned and enforced by the laws of society, that those who have been instrumental in bringing into the world a human being are bound to do what they can to preserve him in existence. The obligation, which in effect is an obligation for maintenance, is reciprocal, and is binding on children in regard to their parents equally as on parents in regard to their children. This duty, as regards children, rests no doubt necessarily on a somewhat different foundation from that on which it rests in the case of parents. Nevertheless, it is based on another rule of the law of nature equally authorities with the other, viz. that a child owing his existence, as he does, to his parents, is bound to provide for them when no longer able to provide for themselves. Nor of the ratio of this rule applicable exclusively to the case of such as have become parents in due course of lawful wedlock; for the claim of support, resting as it does on the mere fact of the parents, must be available to both classes of parents alike.
One these grounds the Sheriff has had no difficulty in repelling that part of the defence by which it is pled that the defender being an illegitimate child, is not liable to the pursuer for any ailment that she may require for her support and maintenance.