Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Sutherland and Caithness. Neil M'Intosh, fisherman at Pulteneytown, Wick, sued Norman Fraser, gamekeeper at Kildonan, for the aliment of an illegitimate child, of whom the defender was the admitted father, and whose mother had been afterwards married to the pursuer. The child was born in March 1854. Catherine Sinclair, the mother, was married to the pursuer in November 1860, and died in January 1869. The pursuer claimed (1) aliment at the rate of £5 a-year, due to Catherine Sinclair for the child, in respect of the time previous to her marriage, to which debt he had succeeded jure mariti, credit being given to the defender for £14 paid to Catherine Sinclair to account; (2) the sum of £8 a-year from December 1860 to December 1868, for aliment, books, and education alleged to have been furnished to the child during that period by the pursuer.

The defence was, that the defender had from time to time, during the first seven years of the child's life, contributed sums for its maintenance, amounting on the whole to more than £4 a-year, which was the usual rate payable by the father of an illegitimate child. In support of this statement receipts were produced, one signed by Catherine Sinclair for £13, and three others instructing payments to the amount of £10, not signed by the mother, but which the defender offered to prove were on her account. In addition to these the defender alleged that he had made further payments to the extent of £8, for which he got no receipts. In regard to the claim for aliment subsequent to that period, he averred that he had offered to take the child to his home and maintain him there; that the mother refused to part with the custody of the child, and consequently he pleaded that there was no further obligation on him to contribute to his support; Adair, 24th February 1860, 22 D. 897.

The Sheriff-Substitute ( Mackenzie) allowed parties a proof.

The pursuer stated in his evidence that his wife brought the boy to his house at their marriage; that during the time he lived in the house he did no work whatever, except for four weeks; and that with that exception his maintenance, clothing, and education had been entirely defrayed by the pursuer.

A number of letters were produced, written by the defender to Catherine Sinclair between March 1854 and November 1861. In these he expressed interest in the boy's welfare, begged her to treat him kindly and send him to school, referred to remittances which he had made through various channels, and frequently asked for receipts. The defender stated that soon after the birth of the child he had agreed with the mother that the aliment should be £4 a-year, Other evidence was led, more or less corroborating the defender's statement as to payments made to the mother. The evidence as to the defender's offer to take the child was not very distinct, hut the letters showed that the mother was unwilling to part with the child. The boy himself was examined as a witness for the defender. He entirely contradicted the pursuer's statement that he had been at the sole expense of his upbringing from the time of his mother's marriage. The boy stated that for the first year of this period he had lived with his grandmother, and with regard to the rest of the period, he stated that his aunts had supplied him with clothing, and that from the age of nine he had earned considerable sums by his own industry.

The Sheriff-Substitute ( Mackenzie) sustained the defences, and assoilzied the defender.

The Sheriff ( Fordyce) altered, and found the defender liable for aliment at the rate of £5 a-year for the first period, and £6 a-year for the second period.

The defender appealed.

Mackintosh for him.

Buntine for pursuer.

At advising—