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Couper or Simpson's two pupil children Margaret Simpson, who was born on 22nd January 1906, and Allan Hugh Simpson, who was born on 8th February 1907, the said claim was not insisted in. The said two children were maintained by the said Hugh Kinghorn Couper until the date of his death.

4. The estate, which was wholly moveable, left by the said Hugh Kinghorn Couper, after payment of ordinary creditors, deathbed and funeral expenses, and the expenses of the executry, amounted to the sum of £280, 19s. 2d. The said Mrs Jessie Anderson Couper or Simpson and the said Matthew Anderson

Couper are the sole next-of-kin and heirs in mobilibus ab intestato of the said Hugh Kinghorn Couper.

5. The second party duly entered upon the office of executor-dative of the said Hugh Kinghorn Couper, and he has prepared a scheme of division of the said balance of the moveable estate of the said Hugh Kinghorn Couper amounting as aforesaid to the sum of £280, 19s. 2d. between himself and the said Mrs Jessie Anderson Couper or Simpson as heirs in mobilibus of the said Hugh Kinghorn Couper. Under the said scheme of division the said estate is apportioned equally between the second party as an individual and the said Mrs Jessie Anderson Couper or Simpson to the extent of £140, 9s. 7d. each. On 22nd June 1922 the second party placed the sum of £140, 9s. 7d., the amount of the share apportioned to the said Mrs Jessie Anderson Couper or Simpson as aforesaid, in bank on deposit-receipt and appropriated to himself the sum of £102, 5s. 11d., the balance of the share of the estate falling to himself under the said scheme of division, less sums amounting in all to £38, 4s. 8d. paid to the second party cut of the executry estate on 5th and 20th May and 5th June 1922. The said last-mentioned payments to the second party and the final division of the estate were made by the second party less than six months after the date of the death of the said Hugh Kinghorn Couper and in the knowledge of the fact that the said

Mrs Jessie Anderson Couper or Simpson was being maintained at the public expense as a pauper lunatic. 6. The amount expended by the first parties or their predecessors the Parish Council of Leith on behalf of the said Mrs Jessie Anderson Couper or Simpson from 16th January 1913 until the death of the said Hugh Kinghorn Couper on 16th January 1922 was £303, 6s. 6d. For the period from 16th January 1922 until Martinmas 1922 the first parties have expended further sums on the maintenance of the said Mrs Jessie Anderson Couper or Simpson amounting approximately to £48.

The Questions of Law for the opinion and judgment of the Court included, inter alia :

"4. Was the second party entitled to distribute the estate as he did according to the said scheme of division?"

Argued for the First Parties: The executor was not entitled in the circumstances to distribute the funds under his charge. An obligation to aliment an insane child transmitted to the representatives of the parent and became

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thus a debt of the estate (Bankton's Inst., Council v. I. vi. 16; Erskine's Inst., I. vi. 58 and Couper. note; Stair's Inst., I. v. 7; More's Notes to December 7, Stair, xxx.; Thomson, 1778, M. 434; Young, 1790, Μ. 400; Scot, 1759, M. 440; Riddells, 1802, M. App. "Aliment," No. 4; Ormiston v. Wood, 1838, 11 Sc. J. 232; Spalding, 1874, 2 R. 237; Parish Council of Leslie, 1899, 1 F. 601; Davidson's Trs., 1907 S.C. 16; Anderson v. Grant, 1899, 1 F. 484; Urquhart's Exrs., 1899, 1 F. 1149; Howard's Exr., 1894, 21 R. 787). The case of Stuart (10 D. 1275) was distinguishable.

Argued for the Second Party: The present case was ruled by the cases of Stuart (1848, 10 D. 1275) and Mackintosh (1868, 7 М. 67). There was here no outstanding obligation to be met, as the legal share of the executry estate effeiring to the insane child was not yet exhausted. Even if the obligation to insane child transmitted, such

aliment an

transmission did not prevent distribution where all the children were receiving their legal share of their parent's estate. The cases cited for the first parties distinguishable.

were

On 7th December 1923 the Court answered the fourth question of law in the affirmative.

Lord Hunter. The first parties to this special case are the Parish Council of the City of Edinburgh, and the second party is Matthew Anderson Couper, as executor-dative qua nextof-kin of the late Hugh Kinghorn Couper and as an individual. From the stated case it appears that the late Mr Couper, who was a music teacher, died on 16th January 1922,

intestate and domiciled in Scotland. He was predeceased by his wife and survived by one son, the second party, and by a widowed daughter, Mrs Simpson. Mrs Simpson is a lunatic; she has been confined in an asylum since the year 1913, and, so far as appears from the case, there is no immediate prospect of her recovering her sanity. She is forty-two years of age. The estate left by the deceased amounted to the sum of £280, 19s. 2d. On the 22nd June 1922 the second party divided that estate equally between himself and his sister, placing £140, 9s. 7d. on deposit-receipt in the name of or for the benefit of his sister, and crediting himself with £102, being the balance left after deducting some £40 which he had already received, from £140, 9s. 7d.

The contention of the Parish Council is that he had no right to distribute the estate, that he ought to have retained it intact in order to meet their claim for future aliment in respect

representatives, does not constitute a charge on the estate so as to create a burden over it enabling her to prevent the distribution of the estate among the beneficiaries in order to provide security for the contingency of her claim for aliment emerging."

On those authorities the contention of the Parish Council as to the want of power on the part of the second party to distribute the estate as he has done is unsound. I think it would be unfortunate, in the case of small estates, if any such view as the Parish Council in the present case puts forward were to be given effect to. That really is the practical question in the case, because, if we determine the fourth question adversely to the Parish Council, it seems to me quite unnecessary for us to deal with the three other questions.

No doubt, in certain cases-we have had a number of examples cited to us the representatives of a deceased parent have been held liable to aliment either a widow or some other member of the family. These have invariably been cases where the person upon whom the obligation has been placed has been specially favoured, i.e. has obtained a larger share of the estate than he would have obtained if the legal order of succession had applied, or, if there has been a legal distribution of the estate, where the result has been to give practically everything to one and almost nothing to the other members of the family, as, for example, where a man dies leaving only heritage and everything passes to the heir. The other members of the family, if there are any, have to be alimented by the heir who has taken the whole patrimony of the father. There are other similar cases.

In the present case I do not think it is necessary for us to consider whether a claim could be made good against the second party if the fund that properly effeirs to the lunatic were exhausted. I do not say anything to encourage the Parish Council to make such a claim, because, as at present advised, I incline to the opinion that such a claim would be doomed to failure. I suggest to your Lordships that we should answer the fourth question in the affirmative and find it unnecessary to answer the other questions.

Lord Ormidale. I agree entirely with the opinion of Lord Hunter. I think in this case it is unnecessary to deal with the first three questions.

As to question 4, in the special circumstances disclosed and admitted in this case, which are somewhat peculiar, there can be no doubt as to the answer to be given. The question is really foreclosed by authority. I thought at first

that the Vice-Dean's criticism of the case of 2ND DIV. Howard might make it possible to distinguish Edinburgh that case, so far as its law is concerned, from Parish the present. But it is impossible, in my judg- Council v. ment, when one considers the opinions in the Couper. subsequent case of Anderson v. Grant, in which December 7, the result of the decision in Howard is stated both by the Lord President and Lord Kinnear, to doubt that the situation here and in Howard is in effect the same.

Accordingly, I agree that the second party having distributed the estate, as he did in June 1922, the fourth question should be answered in the affirmative.

Lord Anderson. - I agree. The contention of the first parties is that the whole estate of the deceased should have been retained in the hands of the executor to meet claims which may possibly be made in connection with the support of a daughter of the deceased. If this contention were given effect to, I think it is plain that the estates which would be affected would be small estates, because in the case of large estates the legal share would be sufficient to meet the cost of the future maintenance of the incapax. In the case of small estates there may be others interested to whom indefinite impounding of the estate would be a serious hardship.

If the case is looked at apart from decision, it seems to me that there are certain considerations of principle and of equity which are adverse to the argument of the first parties. In many cases estates would never be distributed at all, and this would happen because the whole estate would be expended on behalf of the incapax, with the result that other children and, it may be, the widow, would be deprived of their legal rights. Of course this result would follow if it were a claim of aliment, because these claims for legal rights are postponed to the claims of creditors which are due and prestable. But it seems to me that this is not a real or true debt at all. It is a mere contingent liability which may never emerge or become prestable. The particular circumstances of this case point that observation, because, on 22nd June 1922, when the executor divided the estate, it appears that only £28 or thereby was due to the Parish Council for past maintenance of the incapax; and there was, therefore, at that date, the sum of £112 or thereby which was available for her future maintenance. But before that considerable sum had been expended, the unfortunate woman might have died or she might have recovered. Therefore, it seems to me that, in the particular circumstances of this case, keeping these possible contingencies in view, the executor was well justified in dividing the

1923.

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2ND DIV. estate at the time he did. I am of opinion that there is no duty on an executor to make Edinburgh Parish provision for a claim of this nature before disCouncil v. tributing. It is enough if he pays or sets Couper. aside the legal share of the incapax, which, December 7, of course, is liable for her future support. There has been no authority referred to to substantiate the proposition that a claim of so hypothetical a character must be provided for before the legitim fund is calculated. So much for principle and equity, which I think are against the first parties.

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As regards authority, I am of opinion that the cases referred to by Lord Hunter, and especially the cases of Mackintosh, Howard, Anderson, and Davidson's Trs. (1907 S.C. 16), are authorities direct and pertinent against the contentions of the first parties. I, therefore, agree that the case should be disposed of in the manner suggested by Lord Hunter.

The Lord Justice-Clerk (Alness). - I agree. I think the contention of the first parties is concluded against them by authority, and, in particular, by the case of Howard's Exr. I should have thought, on a perusal of that case, that it was decisive of the controversy between the parties; and I am fortified and justified in that view by what passed in the subsequent case of Anderson v. Grant. To hold that the case of Howard was not decisive against the contention of the first parties would involve the assumption that both the Lord President and Lord Kinnear, who gave judgment in the case of Anderson, and the former of whom had taken part in the judgment in the case of Howard, had misapprehended the tenor of that judgment. That is an assumption which I am not prepared to make.

Counsel for the First Parties, C. H. Brown, K.C. (Vice-Dean), Burnet; Agents, R. Addison Smith & Co., W.S.-Counsel for the Second Party, Gentles, K.C., Duffes; Agents, Mackenzie & Wyllie, W.S. W. R. G.

HOUSE OF LORDS.

(Lords Dunedin, Atkinson, Shaw of Dunfermline, Phillimore, and Blanesburgh.)

26th November 1923.

Process-Record-New ground of action, not averred on record, emerging at proof - Held that, without amendment of the record and payment of expenses, it was not permissible to give judgment for pursuer on the new ground of action - Davidson v. Logan (1908 S.C. 350) doubted.

(Reported ante, 1923, S.L.T. 311.)

Appeal from Interlocutor of the First Division (The Lord President, Lords Skerrington and Cullen).

The pursuer appealed to the House of Lords. On 26th November 1923 their Lordships, without calling on the respondents, dismissed the appeal, and affirmed the interlocutor appealed from.

Lord Dunedin. -Mr Wark has set forth very clearly and fairly the points which arise on this appeal, but I cannot say that he has for a moment raised any doubt in my mind that the judgments appealed against are right.

There was a contract in this case for the execution of certain rough casting. It was a simple contract in these terms: "I hereby offer to do all the rough casting pointed out to me in a certain place for a certain price. That offer was accepted verbally subject to a certain modification as to the price. After the work was executed the parties who had got the work done for them complained that it was not in accordance with the contract. This was denied by the contractor, and as they could not come to agreement they referred the matter to a practical plasterer as arbiter. The submission I need not quote at any length; it sets forth the offer and the acceptance; it then says in general terms that the parties are not satisfied with the work done, and then it refers to a third party, a practical plasterer,

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as sole arbiter all claims, disputes, questions, and differences presently existing between them regarding the rough casting referred to, and particularly whether the rough casting referred to has been executed by the first party in accordance with the foresaid offer, which is docqueted and signed by the parties as relative hereto, and in a manner recognised by and according to the custom of the trade, not only as regards material but also as regards quantities, quality, and solidity of the work done, and further whether said work has been executed in a satisfactory and tradesmanlike

(Wishaw) Limited.

Arbitration-Procedure-Examination of witnesses in absence of party-Reduction of award-Decision of in favour of the party seeking to reduce the award

The arbiter took up the reference and he gave an award, and in his award he puts this question to himself. He calls attention to the fact that there was not any actual specification, but that it was left to the question of the custom of the trade, and he says:

"Is