v. Ross

15, 1896

lands payable at the first term of Whitsunday or Martinmas after her own death.

This last proposal can hardly, I think, be taken seriously, because if anything is certain in this branch of the law it is that as the loss caused by a claim of legitim or jus relicta is immediate, so the compensa

tion must be as immediate as the nature of the surrender interest will allow.

"The defender has a present fee in these lands none the less that it is burdened with a liferent, and there is no reason why that should not be at once made over to the person who suffers present loss by his claim.

"If the defender's conventional provision had been of the nature of an annual payment there might have been a chance of the same thing happening as in Oliver's case. But that not being so, I do not see how any rise in the value of land or any other change of circumstances can possibly affect the question. It seems to me therefore that the pursuer is entitled to decree without further inquiry."

66

The defender reclaimed, and having been appointed by the Court to state in a minute Whether he avers that the value of his interest in the heritable estate, subject to the pursuer's liferent, exceeds the value of the legitim and interest paid to him," lodged a minute to the effect that "he did not aver that the value of his interest in the heritable estate, subject to the said liferent, exceeded the value of the legitim and interest found due to him."

Argued for the defender-(1) The action was irrelevant. It proceeded upon the principle that if anyone in the defender's position chose to claim his legal right he necessarily forfeited his legal provision. There was no authority for this-Macfar lane's Trustees v. Oliver, July 20, 1882, decided that equitable compensation and not absolute forfeiture was the result of a child claiming legitim in such a case. The summons here contained nothing about equitable compensation. (2) In any event, the pursuer was not entitled to the lands in forma specifica; they should be sold, and then the price should be paid to her.

Argued for the pursuer-The word "forfeiture" was often loosely employed as equivalent to "equitable compensation," as was pointed out in Macfarlane's Trustees, ut supra, by Lord Curriehill, p. 1143, Lord M'Laren, p. 1158, Lord President Inglis, p. 1167, and Lord Shand, p. 1178. Even where there was an express exclusion of the legal provision, equitable compensation and not forfeiture had been held to apply-Russell's Trustees v. Gardiners, June 18, 1886, 13 R. 989. The reason for this looseness of terminology was that in most cases, as in the present one, the result in fact of forfeiture and of equitable compensation was the same. The defender here was bound, and had completely failed, to show that the value of the heritable estate was greater than that of the legitim fund. The pursuer was therefore entitled to her declarator, and to get the lands in fee-simple-Bell's Com. i. 141, seq., referred to.

At advising

LORD M'LAREN-After hearing counsel on the reclaiming-note we appointed the defender to state in a minute whether he averred that the value of his interest in the heritable estate, subject to the pursuer's liferent, exceeded the value of the legitim and interest. A minute has now been lodged for the defender, to the effect that he does not aver that the value of his interest in the heritable estate, subject to the said liferent, exceeds the value of the legitim and interest found due to him.

Lady

The case now stands in this position--the defender has claimed his legitim, and as a consequence of this claim, he is disentitled to assert any claim under his father's will, which would diminish the value of the interests of other beneficiaries under that will. Under the will of the late Sir Charles Ross the unentailed lands are given to his widow Lady Ross for life, and to the defender Sir Charles Ross in fee. Ross under the will takes the personal estate absolutely. By his election to take legitim the defender has diminished the value of Lady Ross' interest in the personalty, and according to the established principle of equitable compensation, Lady Ross is entitled to be compensated out of the heritable estate (which the defender is not in a position to claim) for the pecuniary loss which she has sustained by and through the withdrawal of the legitim fund. The only question between the parties relates to the form in which the compensation ought to be made.

The claim of the pursuer is that the heritable estate should be declared to be her absolute property-in other words, that her liferent shall be enlarged to a right of fee.

If

This claim is opposed by the defender, who, as I understood, without committing himself unreservedly to an alternative proposal, suggested that the unentailed estate should be sold, and that compensation might be given out of the proceeds of sale. Now, unless there is any rule of law or equity, which prescribes that compensation to a disappointed legatee can only be given in money, the proposed sale of the estate does not commend itself to my mind as a just or expedient measure. there were any reason to suppose that the defender had made a mistake in his choice, and that the reversion of the estate was really more valuable than the legitim, we might have allowed him to reconsider his election, because a judicial election would not, in general, become final until it had been followed by a decree transferring the fund to the party electing. It was in view of the possibility of mistake that we gave the defender an opportunity of stating in a minute, whether he now says that the right chosen is the less valuable of the two. does not say so, and I therefore assume that the reversion of the heritable estate is of less value than the legitim fund, and that the compensation to the pursuer is incomplete. That being so, I fail to see why the pursuer should be subjected to the

He

risk of further loss by being compelled to submit to a forced sale of the estate. The defender can take no benefit by the proposed sale, because according to the existing conditions, the whole price must be applied for the pursuers' benefit, first, in giving her an equivalent for her life interest in the lands, and secondly, in compensating her for the withdrawal of the legitim fund.

But in putting the argument thus I have understated the pursuer's case. She is a liferenter by disposition, and cannot be compelled to renounce her liferent of the specific estate, or to accept its value in money. Consequently the hypothetical sale must be a sale of the reversion of the estate only. This of course, would be a very disadvantageous mode of realisation, and it is not certain that a purchaser could be found at all who would be willing to buy an estate burdened with a liferent.

The only alternative is that which the Lord Ordinary has approved, that Lady Ross as her husband's trustee should be empowered to convey the estate to herself beneficially, and I am of opinion that the pursuer is entitled to compensation in forma specifica, and that the Lord Ordinary's interlocutor should be adhered to.

LORD ADAM-I concur.

LORD KINNEAR-I am of the same opinion. Sir Charles Ross' will embraces and disposes of the legitim fund, and therefore it is an implied condition of the bequest which he makes in favour of his son that his son shall not take legitim, but that the whole legitim fund shall go to his widow in consideration of his giving to the son the fee-simple land which he was entitled to dispose of by will. And therefore if the son refuses to comply with the conditions of the settlement and demands legitim, there can be no question at all that the widow is to be compensated by taking the same amount out of the estate given to the son, since she cannot have the legitim fund which her husband intended, for her. But the action is brought for the purpose of obtaining that compensation, and it appears to me that there is no relevant defence stated upon the record.

The only ground for the defence which was maintained in argument was, that the widow was not entitled to declare the forfeiture of the heritable estate, because the result of the son's claim to legitim is, according to the argument, not forfeiture of any right given to him by the will, but a right to equitable compensation to those whose interests have been disappointed by his claim. That appeared to me to be a somewhat technical construction of the words used in the summons, because the true meaning of the summons is simply to give effect to what is admittedly the right of the widow, to have handed over to her the estates given by the settlement to the son in order to make up to her for the loss she has sustained through the claim to legitim. It is perfectly true that that right is inaccurately described when it is called a forfeiture, but the error in the use of

language arises very commonly, as the Lord President explained in the case of Macfarlane, from the condition of matters in which the claimant is placed by the demand for legitim; because, as his Lordship points out, in the great majority of cases the whole provisions of the refractory legatee are required to restore the adminis tration of the estate against the disturbance caused by the claim for legitim; since the legatee will not in general claim legitim unless he supposes it to be more valuable than the testamentary provision, and the result accordingly, in the great majority of cases, is exactly the same as if the refractory legatee had forfeited his right, and hence the inaccurate us of the term "forfeiture."

But it appears to me that there is nothing in the use of that term to have precluded the defender in this action, if he had thought fit, from bringing forward in defence the plea which, upon the theory of his argument, would have arisen to him, and from saying, I am not bound to give up the whole of the fee-simple estates, because they are more valuable than the legitim fund. But if he is not to consent to make over the provision in his favour to the widow by way of compensation, then it lies upon him to show that he is not bound to do so because that would amount to more than the compensation due. That appears to me to be the only relevant defence he could state to this action, and he refrained from stating it.

I think the Lord Ordinary went somewhat further in his favour than he was entitled to expect when he called upon the widow to state the value of the fee-simple estates. The son is quite entitled to be fully informed as to the relative value of the legitim fund on the one hand, and of his testamentary provisions on the other, before he makes his election, but he was in quite as good a position as the widow could be for ascertaining the value which he himself was prepared to put upon the feesimple estates. However that may be, he has now had a further opportunity of showing whether or not the estates given to him under the will are or are not more valuable than the legitim fund, and he declines to say that they are more valuable. Therefore I am unable to see that he has any relevant defence to the widow's claim. The LORD PRESIDENT concurred. The Court adhered.

Counsel for the Pursuer-Clyde. Agent -Keith R. Maitland, W.S.

Counsel for the Defender-W. Campbell Pitman. Agents J. & F. Anderson,

W.S.

Tuesday, May 12.

SECOND DIVISION.

[Sheriff-Substitute of Fife and Kinross.

SUTHERLAND v. HUTTON. Contract-Grazing Horse for Hire - Accident to Horse while in Grazier's Custody from Cause Unexplained - Responsi bility for Loss - Onus- Where Action Based on Fault.

A horse while being grazed for hire by a farmer, received an injury in consequence of which it lost the sight of one eye. In an action by the owner against the grazier for a sum equivalent to the deterioration in value of the horse, the pursuer based his case upon averments of fault and negligence on the part of the defender, and on pleas founded on these averments. The proof failed to substantiate any fault on the part of the defender, or to show in what way the animal met the injury. Held that as the pursuer had based his action upon fault, which he had failed to prove, the defender was entitled to absolvitor.

Opinion (per Lord Young) that the risk of accidental loss in such a case lay upon the owner and not upon the custodier, and that in order to make the latter liable he must be shown to have been in fault.

On 29th October 1894 Alexander Hutton junior, as manager for his mother Mrs Marianne Braid or Hutton, Cults Farm, Fife, the defender in the present action, undertook to winter a three year old colt belonging to William Sutherland, postingmaster and horse and carriage-hirer, Station Hotel, Cupar, the pursuer. The colt was to be kept for a period of six months, and the sum to be paid in return was three pounds. There was some conflict of evidence as to the conditions of the bargain, Sutherland maintaining that nothing was agreed to about risk, and Hutton alleging, on the other hand, that it was arranged that the colt should stand at the owner's risk. It was admitted that the defender was bound to inform pursuer as soon as possible if any accident happened to the animal. The colt was sent to the defender's farm on 30th October, and was put along with a two-year-old Clydesdale colt belonging to the defender in a loose-box opening off the reed in the steading, and thereafter it ran with the defender's colt, was fed along with it, taken out into the same field with it, and generally treated in the same way that it was. On the night of Sunday 13th January 1895 it was reported to the defender by her foreman that the pursuer's colt had met with an injury to its eye. The next forenoon the defender sent into Cupar to inform the pursuer of this injury, and he at once came out and afterwards sent a veterinary surgeon to attend on the colt. In consequence of this injury

VOL. XXXIII.

the colt lost the sight of the eye, and became in consequence much deteriorated in value. The cause of the injury was never determined although a searching examination was made. There was, however, some barbed wire in the fence of the field in which the colt ran, and there were some jagged and irregular spars in the fence of the reed. It appeared from the veterinary evidence that the injury might have been caused by the colt coming in contact with either the barbed wire or the spars. It also appeared from the veterinary evidence that in all probability the injury was sustained by the colt several days before it was noticed by defender's fore

man.

On 12th June 1895 Sutherland brought the present action in the Sheriff Court at Cupar against Mrs Hutton, craving decree for £40 as damages for the injury to the colt.

The pursuer averred "(Cond. 9) The injury to the said colt's eye was caused either through its being struck on the face by defender, or a person or persons for whom she is responsible, with a ragged or a sharp-pointed stick, or a hayfork, or a stone or a graip. Or otherwise the injury was caused through the colt's eye having come in contact with some of the sharp edges of the reed fence in which the colt was, with culpable negligence, enclosed. On pursuer calling on defender's manager to explain how the colt received the injury, he professed his inability to do so, although he was bound to have been in a position to give the required information. Defender's counter averments are denied."

The pursuer pleaded inter alia—“(1) Said colt having been injured while in defender's custody, and by the fault or neglect of defender, as stated, she is liable to pursuer in the loss and damage thereby sustained. (2) Defender having through fault or neglect failed to restore the said colt to pursuer at 31st March 1895 in sound and good condition, and pursuer having thereby sustained loss and damage to the extent of £40, defender is liable to pursuer in that sum. (6) The defender's averments and pleas are irrelevant."

The defender averred-"(Ans. 9) Admitted that the defender's manager was unable to explain how the colt's eye had come by the injury. Quoad ultra denied. Averred that every care was taken of the animal during the time it was at Cults, and that every attention possible was paid to the proper treatment and feeding. The defender believes that the injury was the result of a pure accident, against which no amount of forethought or care could provide, and for which in any view the defender is not responsible."

She pleaded, inter alia-"(1) The colt in question not having sustained injury through the fault or negligence of the defender, or of those for whom she is responsible, the defender is not liable in damages to the pursuer. (2) The defender having bestowed all reasonable care and attention on the colt while in her custody, is not liable for the consequences of an accident

NO. XLIX.

against which no amount of forethought or care could provide."

A proof was allowed, in which the defender was ordained to lead, and at which the facts above set forth appeared.

Thereafter on 28th January 1896 the Sheriff-Substitute (HENDERSON) issued an interlocutor, by which, after sundry findings in fact, including, inter alia, a finding that one of the conditions of the bargain was that the colt was to stand at the owner's risk, he found that the injury was "one of the risks which the pursuer undertook when he sent the colt to winter under the conditions above mentioned; and therefore found in law that the pursuer had no claim against the defender for the deterioration in value of his colt, and assoilzied the defender from the conclusions of the action with penses."

ex

Note.-"If this case had to be decided apart from the conditions under which the bargain was made-which it is, however, proper to remark appear to be the usual conditions in Fife, and even elsewhere-I am inclined to think the result would be very different.

"The whole tendency of the law of Scotland with regard to injuries suffered by horses, whether hired, lent, or grazed out, seems to be to make the hirer, borrower, or custodier liable for any injuries which the animal may receive while under his control, unless he can prove that the injury suffered was not owing to any fault in himself, his servants, or anything for which he is responsible. He must prove that he has exercised that reasonable care with reference to the animal entrusted to him which a prudent man would take of his own property. While fully recognising this as the regular rule of law in such circumstances, I feel that in this case, and indeed in all similar cases in Fife, unless the owner makes a separate bargain for himnself, the custodier of a wintering colt is understood not to be under that rule. only obligation he seems to be under is to intimate the occurrence of an accident to the owner as soon as he knows of it himself. Whether this practice has arisen from the infrequency of accidents, or on account of the wretchedly low sum paid for wintering, it is useless to inquire. The practice has been proved to exist, and even if it did not exist as the rule in Fife, it was expressly made a part of the bargain in this

case.

The

"It was urged on behalf of the pursuer that as it is proved by the evidence of the veterinary surgeons examined, that the injury must have taken place from a week to ten days before it was discovered by the defender and communicated to the pursuer, this contributes such gross negligence on the part of the defender in not daily examining the colt as to make him liable for deterioration in value of the colt.

"In order to entertain this proposition at all it is necessary to assume that the injury could have been so successfully treated if taken in time as not to have materially injured the colt's value.

"I can find no evidence to that effect-in

fact, Mr Borrowman says that the eye was damaged from the first, and the pursuer says practically the same thing.

"I cannot hold that the mere fact of an injury of this kind not having been discovered for some days after it had occurred can involve a party to such a contract as was here made in liability for any loss caused by it.

"On the general rule of law, apart from special bargain, a very interesting argu ment was adduced to me, and the following authorities were cited and have been carefully considered:-For pursuer-Robertson v. Ogle, June 23, 1809, F.C. No. 120; Marquis v. Ritchie, June 11, 1823, 2 Sh. 386; Pyper v. Thomson, February 4, 1843, 5 D. 498; Smith v. Melvin, December 9, 1845, 8 D. 264; Pullars v. Walker, July 13, 1858, 20 D. 1238; Wilson v. Orr, November 22, 1879, 7 R. 206; M'Laren v. Warnock, June 28, 1883, 10 R. 1053; Bell's Com. i. 488. For defenderBain v. Strang, December 6, 1888, 16 R. 186; Tavendale v. Gray, February 16, 1875, 1 Guthrie's Select Cases 494."

The pursuer appealed to the Court of Session, and argued - The defender here acknowledged that he could not explain how the colt received the injury in ques tion. The onus of showing that the animal was injured without fault upon his part lay upon the defender-Wilson v. Orr, November 22, 1879, 7 R. 266, especially per Lord Justice-Clerk Moncreiff and Lord Gifford, at p. 268; Robertson v. Ogle, June 23, 1809, F.C. He had not discharged that onus. In the absence of explanation he was therefore liable. This case was ruled by the case of Wilson, cit. But, moreover, here there was fault, because it was proved that the injury must have been received some days before notice was sent to the pursuer, and that was in itself fault, for the defender was bound to give information at once of any injury, and if he did not notice it, that showed carelessness in his custody of the colt. As to the special terms of the bargain, it was not proved that there were any special stipulations as to risk, or at least that there were any such stipulations as to supersede the common law as laid down in the case of Wilson, cit.

Counsel for the defender and respondent was not called upon.

LORD JUSTICE-CLERK-This case in cer tain aspects might have raised considerable difficulty, especially in view of certain observations on the law occurring in decided cases. But in the view which I take it is not necessary to consider these questions. The pursuer in his averments, and the pleas which he has based on these averments, asserts that in point of fact the defender was in fault. I have considered the evidence, and the arguments which have been presented to us upon that evidence, and I find that the facts proved do not establish any fault on the part of the defender, and therefore that no facts are proved to support the pleas upon which the pursuer's case is based. These pleas cannot therefore be upheld. On the whole case I am of opinion that the judgment of

v

the Sheriff-Substitute is right, and ought to be affirmed.

LORD YOUNG-I am of the same opinion. But I would be prepared to go a step further. I think that not only was the action laid upon fault, but it does not occur to me that it could have been laid upon anything else. If we look at the ninth condescendence we find that it sets forth the grounds of the pursuer's case [His Lordship read the article]. I should have thought that the colt's eye was hurt by coming in contact with a projection or nail in the fence, a chance to which all cattle in a field are exposed, though the chances are very considerable in favour of their not hurting themselves in that way. I think the probability is that the animal's eye was hurt in the second of the ways indicated in the article of the condescendence which I have read. If it had been proved that the field was enclosed in a dangerous manner, in a way which no person who engages to take care of other people's cattle was entitled to have his field enclosed, the only question would have been whether such a case was supported by the evidence. It is admitted, and very properly admitted, by Mr Lorimer for the pursuer, that there is no evidence of anyone's having struck the colt, or of its naving been injured owing to the dangerous state in which the fence was kept. So it came to this, that the pursuer said, "I don't know how this injury happened, but by law the person who takes charge of an animal under such circumstances is liable, unless he can show it was not his fault." I am quite prepared to negative that, and to say that that is not the law of Scotland, but that the law is, that the risk of accident is not with the custodier but with the owner. The custodier is liable for neglect or any actionable fault, but not for accident without fault. I think that that was what happened here. There was an accident which happened without anyone being to blame for it. That was just a risk-an infinitesimal risk-to which the colt was exposed. I think it will be sufficient in pronouncing our interlocutor to negative the statements of fact on which the pursuer's case rests, to find that in fact there was no fault, and that in point of law there was consequently no liability.

LORD TRAYNER concurred.

The Court pronounced the following interlocutor:

"Sustain the appeal, and recal the interlocutor appealed against: Find in fact that the pursuer has failed to prove that the accident to the colt in question, belonging to the pursuer, was caused through the fault or negligence of the defender: Find in law that the defender is not liable in damages to the pursuer; Therefore assoilzie her from the conclusions of the action, and decern: Find her entitled to expenses in this and in the inferior Court, &c.

Counsel for the Pursuer and AppellantLorimer. Agent-William Black, S.S.C. Counsel for the Defender and Respondent -J. J. Cook. Agents-- George Inglis & Orr, S.S.C.

Wednesday, June 10.

OUTER HOUSE.

[Lord Kyllachy.

WATSON v. WATSON.

(Ante, p. 150, and 23 R. 219.) Parent and Child-Aliment-Measure of Liability of Father for Aliment to his Sons.

The measure of the liability of a father for aliment to his children is that he is bound, so far as he has the means, to provide such a sum as will with economy educate and maintain them suitably to his own condition in life.

A wife obtained decree in an action of divorce, with the custody of the two sons of the marriage (then in pupillarity) and aliment at the rate of £75 per annum for each until they respectively attained minority. When the two sons were aged respectively 20 and 18, and were engaged in study for the medical profession, they raised an action for aliment against their father, who, though possessed of considerable means at the time of his marriage, had at the date of the action no resources except a capital sum of £2500. Held (per Lord Kyllachy, Ordinary) that he was bound to aliment each son to the extent of £50 per annum, these allowances to continue (unless and until the Court should order otherwise in the process) in the case of each pursuer for four

years.

Andrew Gordon Watson and John Liddell Watson brought the present action against their father Hugh Watson, under circumstances which are fully detailed in the former report and in the opinion of the Lord Ordinary. The action concluded for the payment of the annual sum of £75 to each of the pursuers as aliment in terms of a marriage-contract under which Hugh Watson bound himself to aliment, maintain, and educate any children of his marriage in a manner suitable to their station in life, or alternatively for payment to each of the yearly sum of £40 in name of aliment and expense of education, or such other sum less or more as might appear reasonable in the situation of the parties.

On 10th June 1896 the Lord Ordinary (KYLLACHY) pronounced an interlocutor finding the defender liable to each of the pursuers in aliment at the rate of £50 per annum, these allowances to continue (unless and until the Court should order otherwise in this process) in the case of each pursuer for four years.