Scottish Court of Session Decisions

On 23d April 1883 Jessie Downs gave birth to an illegitimate daughter, of which Joseph Wilson junior, who resided at 105 Hill Street, Garnethill, Glasgow, and carried on business as a confectioner in Glasgow, was admittedly the father. Wilson regularly paid for the support of the child until his death on 27th April 1885.

After his death John Gourlay, chartered accountant, Glasgow, was appointed judicial factor on his estates. Subsequently his estates

Page: 777↓

were sequestrated and Mr Gourlay was appointed trustee.

On 28th August 1885 Downs lodged in the sequestration an affidavit and claim for £88 for aliment of her daughter at the rate of £8 per annum from 27th April 1885, the date of Wilson's death, until the child should attain the age of thirteen years. The trustee admitted this claim to the extent of 7s., being the aliment due by the bankrupt for the child up to the date of the sequestration. Quoad ultra he rejected the claim as one which could not be ranked under the Bankruptcy Act.

Downs appealed to the Sheriff.

A similar claim was made by Downs in respect of the aliment of another child by Wilson, a son, who was not born till some months after Wilson died.

The trustee rejected this claim in toto on the same grounds, and Downs appealed to the Sheriff.

On 29th August 1886 the Sheriff-Substitute ( Erskine Murray) pronounced this interlocutor in the former case:—“Finds (1) that the claim now in dispute (being one for inlying expenses and aliment for an illegitimate child of the bankrupt, of which the paternity is admitted at the bar) is a contingent claim of which the amount depends on the contingency of the child's survival: Finds (2) that pursuer is entitled to a ranking for the same, on the footing that the yearly amount is £8, as a contingent claim: Therefore, primo loco, appoints the respondent, the trustee, to value the appellant's claim, in terms of section 53 of the Bankruptcy Act of 1856: Reserving to pronounce further.

“ Note.—.. The question as to the claim for the aliment of an illegitimate child in case of the bankruptcy of the father is one of some nicety. In the somewhat old case of Marjoribanks v. Amos, in 1831, 10 Sh. 79, the Court undoubtedly held that the mother of an illegitimate child was entitled to raise an action against the father after his discharge in bankruptcy for arrears of aliment. The Court held that he still remained liable. Lord Balgray remarking that this was a claim which arose ex debito naturali. But this doctrine is much affected by subsequent cases. The Court have varied their views as to nova debita, and the decisions are not quite consistent; but, on the whole, the Sheriff-Substitute thinks that the proper view to be taken is, that a claim for aliment is a contingent or conditional obligation existing before sequestration, and even emerging as a claim to a certain extent before sequestration, but the greater amount thereof depending on future contingencies. The case of Garden or Fraser v. M'Iver, 15th June 1860, 22 D. 1190, is considerably in point, especially Lord Wood's remarks as to contingent claims and conditional obligations; and still more so are Lord Ivory's remarks in Clarkson v. Fleming, 20 D. 1127. In the latter case Lord Ivory distinctly lays down that the liability for an illegitimate child is not a debt ex debito naturali, but an ordinary debt, thereby takes away the basis of Lord Balgray's view in Marjoribanks.

In the cases of Russell, 12 Sh. 543, and Mitchell, 2 R. 930, it was held that a man could not get the benefit of cessio without agreeing to pay out of his future earnings for the child if it lived. The necessary inference is that the proper course for the mother was to claim in the cessio, and, as a creditor, object to the father's discharge, for it would have been unnecessary for her to do so if a discharge had not the effect of cutting off her claim.”

A similar interlocutor was pronounced in the other case.

The trustee appealed to the Court of Session in terms of section 170 of the Bankruptcy (Scotland) Act 1856, and argued that this was not a debt which fell under the provisions of the Act. This debt was an inextinguishable obligation arising ex jure naturali— Marjoribanks v. Amos, November 30, 1831, 10 S. 79, 1 Bell's Com. 315; Thomson v. Westwood, February 26, 1842, 4 D. 833; Tulloch v. Pollock, February 3, 1847, 9 D. 582; Corrie v. Adair, February 24, 1860, 22 D. 897. But the debts with which the statute dealt were completely extinguished by discharge—19 and 20 Vict. c. 79, secs. 137, 140, and 147.

Argued for the respondent—The mother had a jus crediti against the father's estate for the aliment of an illegitimate child—1 Bell's Com. 635, 648; Bell's Prin, sec. 2062. The mother's claim rested upon the child's claim against both parents— Marjoribanks v. Amos had been overruled; Gairdner v. Morris, February 8, 1848, 10 D. 650; Clarkson v. Fleming, July 7, 1858, 20 D. 1224; Bruce v. Steven, December 5, 1863, 2 Macph. 208. In Marjoribanks v. Amos, as in Tulloch v. Pollock, the claim was not for a ranking but for future aliment.