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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Patrick Davidson of Woodmiln v. Alexander Watson of Glentarkie [1740] UKHL 1_Paton_288 (4 December 1740) URL: http://www.bailii.org/uk/cases/UKHL/1740/1_Paton_288.html Cite as: [1740] UKHL 1_Paton_288 |
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Page: 288↓
(1740) 1 Paton 288
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
No. 57.
Subject_Prescription. — Act 1579, c. 83.—
Found that the act does not apply to actions for the aliment of minors.
[Clerk Home, No. 135; Kilkerran, p. 415; Mor. Dict. p. 11077; Brown's Supp. V. p. 200.]
Alexander Watson of Glentarkie had issue by Jean, his wife, one daughter, Margaret. Failing her and the heirs of her body, he settled his estate upon Alexander Watson the respondent (second son of Watson of Aithernie,) and he appointed Aithernie tutor to his daughter.
Page: 289↓
Upon the death of Glentarkie, his widow intermarried with Patrick Davidson, and Margaret the infant lived in their family, and was alimented by them till her death. She died in minority.
The succession to the landed estate then opened to the respondent; and Athernie, as his tutor in law, granted a bond in favour of Patrick Davidson for 4000 merks as the aliment due for Margaret Watson at Whitsunday 1724.
In 1730, Davidson assigned this bond to his son (the appellant,) and a bond of corroboration was granted in his favour by Athernie and the respondent, then a minor.
In 1735, the respondent being then of age, an action was raised against him for payment of these bonds, and he, on the other hand, instituted an action of reduction of them on the head of minority and lesion.
The Lord Ordinary (10th February 1737) “repelled the reasons of reduction; the bond inferring no lesion, in respect it was granted for aliment of Margaret Watson whom the respondent represented.”
But the Court, upon advising a petition and answers, (6th December 1738,) altered this interlocutor, and “sustained the reasons of reduction, and reduced the said bond, and bond of corroboration, and decerned, reserving to the appellant to insist against the heir or executor of the minor (Margaret Watson) for aliment and education as accords.”
An action was then instituted against the respondent for aliment from 1715 to Whitsunday 1724. The defence was, that the debt being for
Page: 290↓
The appellant answered, that the debt did not fall under the particulars specified in the act of Parliament; the cases provided for being those of debts that are in use to be paid in ready money, which cannot be said of the aliment of minors.
The Lord Ordinary “found (4th January 1739) the bond bearing to be granted on account of the cedents having alimented, and otherwise disbursed upon the education of the deceased Margaret Watson from Whitsunday 1715 to Whitsunday 1724; the assignation to the bond implies an assignation to all the claims competent to the cedent against the granter of the bond for the said aliment to the extent of the sum in the bond; and therefore, notwithstanding the bond is reduced by the respondent on the head of minority and lesion, sustained the pursuer's title, and repelled the defence of the triennial prescription, in respect of the reply, and found the defender liable, reserving to him to be heard on the modification of the sum due.” But the Court, upon advising a petition and answers, found (16th November 1769,) “that the aliment of the minor did fall under the triennial prescription.” *
Entered Dec. 7, 1739.
The appeal was brought from the interlocutors of the 6th December 1738, and 16th November 1739.
Pleaded for the Appellant:—The aliment being admitted, Margaret Watson was debtor for the
_________________ Footnote _________________ * “It being thought unreasonable and contrary to the genius of the law that a minor should be less privileged than a major.” Kilk. p. 415.
Page: 291↓
The respondent, the heir, might have been compelled to pay; and therefore it was of advantage to him that the bond was granted, and he cannot now challenge it on the head of lesion.
The case does not fall under the triennial prescription. That is founded, in the cases specified, on the presumption of payment in ready money and without receipt, whereas the presumption is, that minors have no money to pay, and their tutors and curators never do pay without taking a receipt to serve as a voucher in settling their accounts with their ward.
Pleaded for the Respondent:—The respondent was lesed by the bond in question, because it debarred him from challenging Jean Watson's intromissions with the estate, which were more than sufficient to pay the aliment of Margaret, and because it cut off his right of relief against the executor, the proper heir in the debt.
The plea of prescription is supported by the words of the act, which apply to all aliments, without distinction, between the case of minors and that of majors; and indeed in matters of prescription, the former is more favoured than the latter.
Judgment, December 4, 1740.
After hearing counsel, “it is ordered and adjudged, that in the said interlocutor of the 6th December 1738, after the words, (“said bond of corroboration,”) these words be inserted “(so far as the same do establish a certain liquidated debt of four thousand merks with interest against the respondents;”) “and that at the end of the said interlocutor, these
Page: 292↓
Counsel: For Appellant,
W. Hamilton,
W. Murray.
For Respondent,
W. Noel,
A. H. Campbell.
