v. Halbert

19

as a Roman Catholic-that is, that he will change its religion. I do not think that he is entitled to discharge his obligations to contribute to this child's aliment under any such condition, contrary to the lawful wish and determination of the mother as to the boy's religion and training. Moreover, the defender, from the evidence, is not quite the man to be entrusted with the guidance and training of this boy. I adopt and follow the opinion of Lord Craighill in the case of M'Carroll, 15 S.L.R. 106.'

Against this judgment the defender appealed, and argued-In the case of a male bastard the mother was entitled to the custody, and aliment from the father till it was seven years of age. Thereafter the father, if he was to continue to support the child, was entitled to make his own arrangements for it. If the father made a bona fide offer to receive the child into his own house, and the mother refused this offer, she was not entitled to aliment-Bell's Prin., sec. 2062; Corrie v. Adair, February 24, 1860, 22 D. 897. The Sheriffs had approached the question from a wrong point of view. They seemed to think that the defender had attempted to show that the pursuer was not a proper person to have the custody. He did not take up this position. His argument was that if this child of over seven years of age would be as well taken care of by the father as by the mother, the father's offer to take the child into his own custody must be accepted or his liability for aliment cease.

Counsel for pursuer were not called on.

LORD YOUNG-This is an ordinary action of filiation and aliment by the mother of an illegitimate child againt the father. The latter acknowledges the paternity and his liability, but he pleads that while it was right that the mother should have the custody of the child and receive aliment from him until the child reached the age of seven, he, the father, is now entitled to substitute for his liability for aliment a bona fide offer to take the child into his own custody.

The common case where the father takes up this position is where his circumstances are such as to make it hard upon him to pay £6 or £7 per annum to the mother, when he can at less expense to himself support the child in his own house. But this is not the position of the defender. He is in easy circumstances-a miller keeping servants, and having an apparently prosperous business. The want of money is therefore not the reason of his asking for the custody of the child.

The mother, on the other hand, has led evidence to show that the child is well kept by her, that its comfort is well attended to, that its education is taken care of, and that the father's house would not be a suitable home for it.

I am of opinion that the child should be left with the mother, and that the father should pay aliment to her till the child reaches the age of ten. Both the Sheriff and the Sheriff-Substitute have arrived at the conclusion that it would be better for

the child's welfare that it should remain with its mother until it is ten, and that the father's house is an unsuitable home for it, and they have ordained the defender to pay aliment until the child has attained the age of ten. The child will attain that age in a year and eight or nine months. The question therefore comes to be whether there is any ground for interfering with the judgment of both the Sheriffs. It would require very satisfactory arguments to induce me in a case of this kind to interfere with a judgment pronounced by both Sheriffs, and no such arguments have been adduced here.

I must confess, looking to the defender's circumstances, that his conduct in limiting his contribution for the maintenance of his child till it arrived at the age of seven to £4 per annum is not very satisfactory. I think it would have been more becoming on his part if he had been more liberal.

As regards the difference in the religious denomination of the father and the mother I may say that that consideration does not influence my judgment in the case.

On the whole matter I am of opinion that the evidence does not supply us with any good reason for interfering with the judgment of the Sheriffs, and that it ought to be affirmed with expenses.

LORD TRAYNER-I agree. There is a settled general rule that the father of an illegitimate son is not bound to pay aliment to the mother after the child has attained the age of seven years if he then makes a bona fide offer to receive the child into his home and to support him there. But there are exceptions to the rule, and the most forcible exception occurs where it is certain that such a change of circumstances would be detrimental to the child's health.

The first question in this case is, what is the best course to follow in the interests of this child, and I am of opinion that the result of the proof is that it would be detrimental to the child's health and welfare generally to remove it from its mother's care. The Sheriffs are agreed on this point, and in my opinion the evidence substantially supports their view.

For my part I am not moved by the consideration that the father proposed to bring up the child according to a different faith from that professed by the mother. Such a consideration I regard as hardly relevant to the question whether the custody of the child should be with the father.

LORD MONCREIFF-I agree with the opinions expressed by your Lordships on the question of the defender's right to the custody of this child. The defender is only entitled to the custody of the child as a discharge of his obligation to contribute to his support, but this abstract right to discharge his obligation is qualified by the condition that his charge of the child shall not be detrimental to his (the child's) health. On this latter point proof was led, and it appears to me that the result is to disclose sufficient grounds for the belief that the removal of the child from his mother's house would be injurious to him.

I think that three elements contribute to that result. First, there would be a change in the religious teaching of the child; second, his health would probably suffer; and third, the defender's establishment does not appear to offer a very desirable home and training for a child.

I do not think it is necessary to consider whether any one of these elements taken separately would be sufficient, for I am of opinion that taken together they form a sufficient ground of decision. Especially with regard to the first, I desire to reserve my opinion whether it would by itself form a sufficient ground for refusing to the reputed father the custody of an illegitimate child.

I go

LORD JUSTICE-CLERK-I concur. entirely upon the fact, which I think is proved, that it would be detrimental to the child at its present age to be removed from the custody of the mother.

The Court dismissed the appeal, found in fact and in law in terms of the interlocutor of the Sheriff-Substitute dated 11th February 1896, and of new ordained the defender to pay to the defender £6 yearly as aliment for the child in question until 7th March 1898.

Counsel for Pursuer-M'Lennan-Munro. Agent-Robert Broatch, L.A.

Counsel for Defender-W. Campbell-A. S.D. Thomson. Agents-Adair & Fenwick, S.S.C.

Thursday, May 21.

FIRST

DIVISION. [Sheriff of the Lothians and Peebles.

PATERSON v. KIDD AND ANOTHER. Process-Appeal Competency Judicature Act (6 George IV. cap. 120), sec. 40Interlocutor of Sheriff Allowing Proof "of Consent."

In an action of damages raised in the Sheriff Court in which the defender pleaded that the pursuer's averments were irrelevant, the Sheriff "of consent before answer" allowed a proof.

An appeal by the pursuer to the Court of Session for jury trial under the Judicature Act (6 George IV. cap. 120), sec. 40, dismissed as incompetent (dub. Lord M'Laren), in respect that the interlocutor appealed against, being pronounced "of consent, before answer, set forth a contract between the parties as to the procedure to be followed in the litigation by which both were bound.

Alexander S. Paterson, plumber, Musselburgh, raised an action in the Sheriff Court of the Lothians and Peebles against Alexander Kidd and John Alexander Morris Amour, trustees of the late William Kidd, sometime farmer at Pinkiehill Farm, con

cluding for payment of £500 as damages for injuries caused to the pursuer through the fault or negligence of the defenders.

The defenders pleaded, inter alia, that the pursuer's averments were irrelevant.

On 27th March 1896 the Sheriff-Substitute (HAMILTON) pronounced the following interlocutor:-"The Sheriff-Substitute closes the record on the petition and defences: Of consent, before answer, allows the pursuer a proof of his averments on record, and to the defenders a conjunct probation," &c.

The pursuer appealed to the Court of Session for jury trial.

The Judicature Act (6 George IV. cap. 120), sec. 40, provides "that in all cases originating in the inferior courts in which the claim is in amount above forty pounds, as soon as an order or interlocutor allowing a proof has been pronounced in the inferior courts (unless it be an interlocutor allowing a proof to lie in retentis, or granting diligence for the recovery and production of papers), it shall be competent to either of the parties, or who may conceive that the cause ought to be tried by jury, to remove the process into the Court of Session by bill of advocation, which shall be passed at once without discussion and without caution."

On the pursuer moving the Court to order issues, the defender opposed the motion, and argued-The appeal was incompetent in respect the interlocutor allowing a proof before answer was pronounced of consent. The pursuer and the defenders had agreed to have the facts investigated by the Sheriff before the question of relevancy was discussed, and the pursuer was. not now entitled to withdraw from that contract. The pursuer was as much bound as if he himself had moved for a proofSee the Evidence Act 1866 (29 and 30 Vict. cap. 112), sec. 4; and Cadzow v. Lockhart, July 10, 1875, 2 R. 928. [Per curiam-But how could a pursuer ever appeal a case to the Court of Session for jury trial on your showing? Is not the Sheriff's interlocutor allowing a proof necessarily pronounced on the pursuer's motion?] No; for by the Sheriff Courts Act 1876 (39 and 40 Vict. cap. 70), sec. 23, the Sheriff is directed to appoint a diet of proof on his own initiative when probation is not renounced, and "when proof seems necessary."

Argued for pursuer - The appeal was competent. The mere fact of consenting did not bar the pursuer from claiming issues, nor in any way take the case out of the provisions of the Judicature Act.

At advising

LORD PRESIDENT-There does not appear to be any reason why the interlocutor appealed from should not be construed according to its natural and legal import. So read, it sets forth a contract between the parties to the litigation as to the procedure to be followed. This becomes more clear when we attend to the state of the pleadings when the interlocutor was pronounced. The defenders had on record a plea to relevancy, and according to the

ordinary course, the Sheriff would have had first of all to hear parties on this plea and then dispose of it. From the interlocutor it appears that the parties agreed that the facts should first be ascertained by way of proof before this plea was determined. The present appeal is intended to upset this arrangement, for the pursuer now asks us to settle an issue and send the case to a jury. I do not see how the defender could be allowed to appeal (as is sometimes done under the 40th section) in order to have the action thrown out on relevancy without a breach of the arrangement that the evidence should be led before this question was determined, and both parties must be free, or neither.

I hope I have made it plain that my judgment rests on the words in the interlocutor, "of consent, before answer." I am for dismissing the appeal.

LORD ADAM-I concur.

LORD M'LAREN-My first impression was that no apparent distinction could be taken between an interlocutor proceeding upon a consent and an interlocutor proceeding merely upon the motion of one of the parties. But your Lordship's opinion is clear to the effect which has been stated, and as this is merely a question of practice, I have not such confidence in my opinion as to lead me to dissent.

LORD KINNEAR-I concur with your Lordship in the chair.

The Court dismissed the appeal with expenses.

Counsel for the Pursuer-T. B. Morison. Agent-Marcus J. Brown, S.S.C.

Counsel for the Defenders-A. S. D. Thomson. Agents-Finlay & Wilson, S.S.C.

Thursday, May 21.

FIRST DIVISIO N.

[Lord Kincairney, Ordinary. TAYLOR AND OTHERS v. M‘GAVIGAN AND ANOTHER.

Process-Reclaiming-Note- CompetencyCourt of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11-Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 53.

Held (following Baird v. Barton, June 22, 1882, 9 R. 970, and Crellin's Trustee v. Muirhead's Judicial Factor, October 21, 1893, 21 R. 21) that an interlocutor decerning for and modifying expenses, pronounced after an interlocutor disposing of the cause otherwise, and reserving the question of expenses, may be reclaimed against at any time within twenty-one days from its date.

In this action the Lord Ordinary (KINCAIRNEY) pronounced an interlocutor on 20th January 1896, in the following terms:

cause

Having resumed consideration of the assoilzies the defenders from the whole conclusions of the summons, and decerns: Finds the defenders entitled to expenses, of which allows an account to be given in, and remits it when lodged to the Auditor of Court to tax and to report: Reserving as to modification."

66

On 7th March 1896 the Lord Ordinary pronounced the following interlocutor:Approves of the Auditor's report: . Finds that the taxed amount thereof is £77, 15s. 9d., and having heard counsel on the question of modification, modifies the taxed amount to the sum of £67, 5s. 9d., and decerns against the pursuers for payment to the defenders of that amount accordingly."

On 20th March, being the thirteenth day after the date of this interlocutor, the pursuers presented a reclaiming-note, which was objected to by the defenders as incompetent.

Argued for the defenders - Under the Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11, this was an interlocutor which could only be reclaimed against within ten days, and it had been so expressly decided in Cowper v. Callender, Jan. 19, 1872, 10 Macph. 353. No doubt a reclaimingnote against an interlocutor dealing with expenses brought the previous interlocutors under review (Crellin's Trustee v. Muirhead's Judicial Factor, Oct. 21, 1893, 21 R. 21), but that reclaiming-note must be presented within the statutory time, and Crellin had decided nothing to the contrary.

Argued for the pursuers-The reclaimingnote was competent. Crellin's Trustee (ut sup.) had decided that an interlocutor such as this was not merely executorial, but was a final interlocutor disposing of the merits of the case, and could therefore be reclaimed against to the effect of submitting the whole case to review.-Baird v. Barton, June 22, 1882, 9 R. 970, had settled that such an interlocutor might be reclaimed against within twenty-one days. Cowper could not stand against Baird, especially as it had been decided purely on a construction of the Court of Session Act 1850, sec. 11. The ruling statutory provision here was the 53rd section of the Court of Session Act 1868.

At advising

LORD PRESIDENT-In my opinion this case is ruled by Baird v. Barton and Crellin's Trustee v. Muirhead's Judicial Factor. The reclaiming-note is therefore competent.

LORD ADAM, LORD M'LAREN, and LORD KINNEAR Concurred.

The Court sent the reclaiming-note to the roll.

Counsel for the Pursuers and Reclaimers -M'Lennan. Agents-Cumming & Duff, S.S.C.

Counsel for the Defenders and Respondents-Younger. Agents-Carmichael & Miller, W.S.

Thursday, May 21.

FIRST

DIVISION.

[Lord Kyllachy, Ordinary.

BROWN v. ROBERTSON. Executor-Liability to Creditors of Deceased -Business Carried on by ExecutrixProfits Made Subsequently to Death of Debtor-Enhanced Value of Goodwill.

There is no fiduciary relation between an executor, whether dative or nominate, and the creditors of a deceased person, and the former is not bound to administer the executry estate for behoof of the latter, but must merely account for it as at the date of the deceased's death. Globe Insurance Co. v. Mackenzie (7 Bell's App. 296), followed.

The widow of a publican having been appointed his executrix-dative, continued his business, and obtained a transfer of the licence in her own name and a renewal of the lease. No steps were taken at that time by the creditors of the deceased to vindicate their rights, and no arrangement was made by them with the executrix as to the terms upon which she was to carry on the business. Eighteen months after the creditors sequestrated the estate of the deceased, and the trustee subsequently raised an action against the executrix, concluding, inter alia, for the profits which she had made in the business, and for the enhanced value of the goodwill. Held that the executrix was bound to account only for the value of the estate, including the goodwill, as at the death of her husband.

His

now

Mr John Stewart, wine and spirit merchant, Greenock, died in 1893, leaving debts which considerably exceeded the assets. widow Mrs Catherine Stewart, Robertson, was appointed his executrix, and she gave up an inventory and obtained confirmation. The estate as given up by her amounted to only £70, including £50 for 66 goodwill, furniture, and fittings." No steps were taken at that time by the deceased's creditors to vindicate their claims, and the widow continued his business. She obtained a transfer of the licence, and at the next and succeeding licensing courts obtained renewals. She also made arrangements with the landlord by which she continued in possession of the shop, and ultimately obtained from him a five years' lease in her own favour. No agreement was entered into between Mrs Robertson and the creditors, but she made certain payments to them from time to time in extinction of her husband's debt.

In March 1895 the creditors of Mr Stewart obtained sequestration of his estate, and in October 1895 the trustee on the sequestrated estate raised the present action against Mrs Robertson. The summons concluded for declarator that the defender had entered on the premises and carried on the business

as the executrix of the deceased, and solely for behoof of persons "legally interested in his estate;" and further, for delivery of the licence, removal from the shop, and accounting for all the profits made in the business. There was an alternative conclusion for payment of a certain sum as the alleged value of the deceased's estate at the time of his death.

The pursuer pleaded-"1. The pursuer is entitled to decree in terms of the declaratory conclusions and also in terms of the conclusions for removing and delivery, in respect that (1) The defender Mrs Robertson, in breach of her duty as executrix of John Stewart, failed to realise the assets of his estate and appropriated said assets and applied them in a hazardous trade; (2) The business carried on by said defender by means of said assets constitutes a trust in her person for behoof of those legally interested in John Stewart's estate; (3) The existing assets of the said business now belong to the pursuer as trustee on John Stewart's sequestrated estates. 2. Alternatively, the said assets of John Stewart's estate, or the assets now coming in place thereof, being still realisable, the defender Mrs Robertson is bound forthwith to realise the same, and to account to the pursuer as trustee foresaid for the proceeds to be realised therefrom. 3. The said defender Mrs Robertson having, in breach of her duty as executrix of John Stewart, employed the assets of his executry estate in trade, is liable to account to the pursuer for the profits realised from the employment of said assets in such trade; and, failing an accounting, decree should be pronounced in terms of the alternative conclusions thereanent."

The defender pleaded-"(6) The defender being only bound to account for the value of the estate of her late husband as at the date of his death, and she having been all along, and still being, willing so to account, and having so accounted, the action was unnecessary and ought to be dismissed."

The Lord Ordinary (KYLLACHY) on 20th March repelled the first and third of the pursuer's pleas, and allowed the parties a proof before answer as to the value and disposal of the deceased's estate.

Opinion.-"The defender in this case is the widow of a public-house keeper in Greenock who died in 1893. At his death the defender was appointed his executrixdative, and gave up an inventory and obtained confirmation. The estate as given up by her amounted to only £70, including £50 for goodwill, furniture, and fittings." The debts seem to have considerably exceeded the assets, but the creditors took no steps and the widow continued the deceased's business. She obtained a transfer of the licence into her own name, and at the next and succeeding licensing courts she obtained renewals. She also made arrangements with the landlord by which she continued in possession of the shop, and she ultimately obtained from him a five years' lease in her own favour. She is still in possession, and still carrying on the business. It is not alleged that any agree

v. Robertson

21

ment was made between her and the creditors. She made some payments, but she has not hitherto been asked to account. In other words, she has been allowed, without any special arrangement, to continue in possession of what there is or was of her husband's estate.

"The creditors have now, however, moved apparently by the defender's success in the business, which, as I have said, she still conducts, taken steps to enforce payment of their debts. They have had the estate of their deceased debtor sequestrated, and the trustee in the sequestration now brings the present action against the defender. Had it been an ordinary action of accounting for the defender's intromissions with the executry estate, there could have been no doubt of its relevancy, although there might, in view of the defender's attitude, have been a question as to its necessity. But the question I have to decide is whether, taking the facts as I have stated them, and as set forth by the pursuer on record, there is any room for, at all events, the leading conclusions of the action.

“Having considered the argument which I lately heard in the procedure roll, I have come to the conclusion that in its leading conclusions the action cannot be supported. It proceeds, as it seems to me, on a view of the defender's position in relation to her husband's creditors, which is not tenable in point of law. It assumes that the defender has all along acted and carried on her business substantially as trustee for the creditors, that any profits made by her are theirs, and that the successive licences, as also the lease of the shop, have been obtained for their benefit. Accordingly, its conclusions are (1) for delivery of the licences, (2) for removal from the shop, and (3) for accounting for all profits made in the business. There is an alternative conclusion for payment of a certain sum as the alleged value of the deceased's estate at the time of his death, but on this matter there is no dispute. The pursuer denies the amount, but is quite willing that there should be inquiry.

"Now, it is not, I think, necessary to consider what is the defender's position as executrix-dative with respect to her children the next-of-kin. It may be that towards them she stands in a special position. I do not desire to express any opinion on that question. But towards the creditors of the deceased it appears to me that she is simply eadem persona cum defuncto, standing to the creditors in no other relation than the deceased stood, except that she is a debtor with limited liability, viz., a liability limited by the amount of the deceased's estate. An executor is not a trustee for the deceased's creditors. He is no more so than an heir entering cum beneficio inventarii. He is, in a question with creditors, the proprietor of the estate under burden of payment of their debts. He is not a depositary. He is a debtor; and the equities which result from the position of a depositary-that is to say, of a trustee-are wholly inapplicable. The law on this subject is, I think I must hold, fixed

by the opinions and judgment of this Court and of the House of Lords in the case of the Globe Insurance Company v. Mackenzie, 11 D. 618, 7 Bell's App, 298, where, although in a different connection, the rights and liabilities of executors were fully discussed and considered.

"On the whole matter, I consider that I must repel the pursuer's first and third pleas, and allow, unless parties can arrange for admissions or for a remit, a proof as to the value and disposal of the deceased's estate."

The pursuer reclaimed, and argued-The defender as executrix-dative was really no more than a creditor herself, and accordingly occupied a fiduciary relation towards the other creditors. It was her duty to keep the estate for the benefit of those interested, and to realise it-including the goodwill of the business within six months - Ersk. iii. 9, 42; Bell's Prins. secs. 1899-1900. Instead of doing so she had appropriated the estate to herself, and accordingly, having committed a breach of her fiduciary relations, she was bound to account for all her subsequent intromissions with the estate, and the benefits which she had obtained thereby, and to deliver over the estate in its present condition-Donald v. Hodgart's Trustees, December 8, 1893, 21 R. 246. The case of The Globe Insurance Company v. Mackenzie, quoted by the Lord Ordinary, only settled the question whether a testamentary trustee could be considered to act as trustee for creditors. The present case was that of an executor-dative, who occupied a different position from that of a testamentary trustee. It was held in the cases of Farquhar v. Paton, 1709, M. 3833, and Elphinston v. Paton, 1710, M. 3835, that an executor-dative was bound to account to a creditor for profits made by him out of the deceased's estate Bee v. Wallace's Executors, 1745, M. 6008. An analogous case was that of a partner taking advantage of his position to take in his own name a lease held by the partners till the end of their partnership. A partner so acting was held bound to communicate the profits to his co-partner

M'Niven v. Peffers, December 2, 1868, 7 Macph. 181. Similarly in the case of a tutor-George, &c., Wilsons v. Wilson, 1789, M. 16,376; and of an agent-Macadam v. Martin's Trustee, November 5, 1872, 11 Macph. 33. The fact of the defender having obtained a transfer of the licence in her own name did not prevent her from holding it on behalf of the creditors-Selkirk v. Coupland, January 6, 1886, 23 S.L.R. 456; Philp's Executor v. Philp's Executor, February 1, 1894, 21 R. 482, at 483. In any view, it was undesirable to limit the proof at this stage, and evidence ought to be led as to the cirumstances under which the defender had acquired the business, and the rise in its capital value.

Counsel for the respondent were not called

upon.

LORD M'LAREN-It is often a matter of discretion requiring much discrimination to determine in the Outer House whether