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Scottish Court of Session Decisions >>
Marion Paterson v James Cochran of Kirkwood. [1758] Mor 11080 (14 February 1758)
URL: http://www.bailii.org/scot/cases/ScotCS/1758/Mor2611080-275.html Cite as:
[1758] Mor 11080
Aliment of a bastard child found not to fall under the triennial prescription of the act 1579. The defender had acknowledged he had paid only a certain sum, which was evidently not sufficient.
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Marion Paterson, in 1755, brought an action against Mr Cochran, for aliment of a bastard child which she had brought forth to him in the year 1730.
The defender acknowledged his guilt with the pursuer, and that about twenty years ago he made several payments, amounting to about L. 100 Scots, to her on that account, which he thought was in full of all she could ask; and insisted, That as she had never made any demand on him since that time, her claim was now prescribed by the act 83. parl. 1579, by which it is declared, “That all actions of debt for house-mails, mens ordinaries, &c. and other the like debts, that are not founded upon written obligations, be pursued within three years; otherwise the creditor shall have no action, except he either prove by writ, or by oath of his party.”
Answered for the pursuer, The father is under a natural obligation to furnish aliment to his child, which obligation cannot prescribe; and it is absurd to say; that when another performs this obligation for the father, his claim for relief should be cut off by the triennial prescription. 2do, Supposing the claim was to be referred to the defender's oath, all that he could depose upon would be how much he had truly paid, that the same might be deducted from the pursuer's claim.
Observed on the Bench, The act 1579 proceeds upon a presumption, that debts of the kind there mentioned are paid, either at the time, or before the three years expired. But here the defender does not say, that he paid a reasonable aliment. All he gave, by his own account, was about L. 100 Scots; therefore he ought now to pay the remainder, which, in the case of a gentleman, ought to be maintenance of the child till it is fourteen years of age.
“The Lords repelled the defence founded on the act 1579, and found the defender liable in L. 40 Scots yearly for maintenance of the child till fourteen years of age; and in expenses of process.”
Act. Swinton.Alt. Macqueen.
Fol. Dic. v. 4. p. 105. Fac. Col. No 97. p. 173.
