Scottish Court of Session Decisions

James Ketchen, a lieutenant in the Bombay Native Infantry, the defender in this action, married Julia Matilda Grant on July 5th 1862, went with her to India, and was thereafter promoted to the rank of captain. Four children were born of the marriage, of whom Ethel Julia Grant, the pursuer in this action, alone survived. In October 1868 they returned to Great Britain, and went to reside at Kingillie House, near Nairn; but in May 1870 Mrs Ketchen obtained a decree of divorce against her husband on the ground of adultery. In June 1870 the Second Division of the Court refused the prayer of a petition by the defender for the custody of his child, and gave the custody to the mother. In July 1870 defender offered to pay £25 per annum as aliment for his daughter, but that offer was declined as unsuitable. On November 23d, 1871, pursuer raised the present action, concluding for aliment at the rate of £60 per annum. It appeared that defender was proprietor of Kingillie House, the rental of which was entered on the Valuation Boll as £65, but that the property was burdened with heritable debts to the extent of £1000. Defender's pay as captain in the Indian army amounted to nearly £500, but from September 1868 to September 1870 he had been in receipt of half-pay only, while, subsequently to the latter date, he was allowed 10s. 6d. per diem only.

Pursuer pleaded that “The defender, being the pursuer's father, is bound to aliment the pursuer, and is therefore liable as concluded for.”

Defender pleaded, inter alia—“(1) The pursuer, being a pupil, has no title to sue, and the action ought therefore to be dismissed. (4) The action is barred by the statements and pleadings of the pursuer's mother (the vera domina litis) in the petition for custody.” (This plea referred to a statement by the mother, in objection to that petition, that “she was quite able to support and educate the child in a manner befitting her position in life.”) “(6) The offer made by the defender to pay £25 a-year was, in the circumstances, a reasonable one, and this action was unnecessary.”

The Lord Ordinary ( Jerviswoode) pronounced an interlocutor “ordaining the defender to make payment to the pursuer of the sum of forty pounds sterling (£40) yearly, in name of aliment, payable at the terms, in manner, and with interest, as concluded for in the summons, and that during the pupilarity of the pursuer, without prejudice to such claim for aliment thereafter as she may be advised to insist in.

“ Note.—It was here earnestly argued, on behalf of the defender, that having regard to the principles of law applicable to the class of cases within which the present may be held to come, and of which the case of Maule v. Maule, as decided in the House of Lords is a prominent instance, the aliment which the defender should here be found liable to pay should be fixed at a sum sufficient merely to preserve the pursuer from absolute want. But the Lord Ordinary holds, and in his present judgment has proceeded on the footing, that the case of Maule does not rule, or seriously affect, the principle which is to be applied.

Here the foundation of the claim, at the instance of the pursuer, is the misconduct of the defender himself. That this is so is rendered clear by the terms of the judgment, and of the opinion of the Court, as delivered in the case of Ketchen v. Ketchen (the defender), reported under date July 2d, 1870; and it appears to the Lord Ordinary that it would be contrary to principle to find first that the defender is disqualified by his personal conduct to act as the custodier of his child, and to follow such a finding by fixing the aliment which is, in consequence, to be paid to another, who is to act in loco parentis, at the lowest possible rate consistent with the actual subsistence of the child.”

The defender reclaimed.

Burnet for him.

Lancaster for respondent.

At advising—