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9. Chalmers v. Corporation of Glasgow. 10. Edinburgh Parish Council v. Couper.

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Mrs Catherine Chalmers, 3 Sydney Street, Glasgow, and her husband, John Chalmers, as tutor and administrator-in-law of his infant son, brought an action against the Corporation of the City of Glasgow, as the public authority charged with the care and administration of the public streets of Glasgow, and against J. B. Wills, as representing the proprietors of heritable subjects at 505 Great Eastern Road, Glasgow, for payment, jointly and severally, or severally, of (first) £250 to Mrs Chalmers, and (second) £100 to the said John Chalmers,

as tutor and administrator-in-law foresaid, as reparation for injuries sustained in falling owing to a hole in the pavement.

The averments and pleas of the parties, as well as the terms of the Glasgow Acts founded upon, will be found in the previous report.

On 8th June 1923 the Lord Ordinary (Morison) sustained the defenders' pleas to the relevancy and dismissed the action.

The pursuer reclaimed, and on 30th November 1923 the Court recalled the interlocutor reclaimed against and approved of the issue proposed for the trial of the cause. Opinions were expressed that the legal position of the parties would depend upon the facts established at the enquiry.

Counsel for Pursuers, Fraser, K.C., Gibson; Agents, Warden, Weir & Macgregor, S.S.C., for George C. Mearns, Glasgow.-Counsel for Glasgow Corporation, Gentles, K.C., Russell; Agents, Campbell & Smith, S.S.C., for Sir John Lindsay, Glasgow.-Counsel for J. B. Wills, Watt, K.C., Duffes; Agents, Macpherson & Mackay, W.S., for G. & G. Richards Bradley, Glasgow.

W. R. G.

Poor-Aliment-Claim by Parish Council-Executor dividing his parent's estate equally between himself and his sister, who was insane and chargeable as a pauper lunatic- Parish Council objecting to the distribution of the estate, on the ground that when the share of the parent's estate effeiring to the insane sister was exhausted, an obligation to aliment her transmitted to the effect of attaching the half share of the estate to which the executor had succeeded-Held that the executor was entitled to distribute his parent's estate.

Special Case.

The Parish Council of the City Parish of Edinburgh having objected to the distribution teacher, Dunbar, by his executor until the of the estate of Hugh Kinghorn Couper, music latter had made due provision for the aliment of Mrs Jessie Anderson Couper or Simpson, a widowed daughter of the deceased, who had become chargeable to the Parish Council as a pauper lunatic, a special case was presented for the opinion and judgment of the Court upon the questions raised.

The Parish Council were the first parties to the case, and Matthew Anderson Couper, as executor-dative of his father, Hugh Kinghorn Couper, and as an individual, was the second


The case set forth :

1. Hugh Kinghorn Couper, music teacher, who resided in Marine Road, Dunbar, died on 16th January

1922 intestate and domiciled in Scotland. He was

predeceased by his wife, and was survived by one Mrs Jessie Anderson Couper or Simpson, widow of son Matthew Anderson Couper, and one daughter Allan Boak Simpson, who died in Leith on 30th January 1909. The said Matthew Anderson Couper was appointed executor-dative qua next-of-kin of the said Hugh Kinghorn Couper, and as such and as an individual is the party of the second part.

2. . . The said Mrs Jessie Anderson Couper or Simpson has been a pauper lunatic since 16th January 1913, and is at present chargeable as such to the said Edinburgh Parish Council, who are the

parties of the first part. She is forty-two years of age. was until the death of her father the said Hugh 3. The said Mrs Jessie Anderson Couper or Simpson Kinghorn Couper possessed of no means of her own, and the said Hugh Kinghorn Couper was under legal liability to aliment and support her from the date when she became chargeable as a pauper lunatic as aforesaid. After she became chargeable a claim was intimated on behalf of the Parish Council. . . . to the said Hugh Kinghorn Couper for repayment of


her board in the said asylum, but in respect that the said Hugh Kinghorn Couper undertook the maintenance and support of the said Mrs Jessie Anderson 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



a debt chargeable upon the parent's whole free 2ND DIV. estate. Before division of the estate provision Edinburgh had to be made by the executor for what was Parish 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, M. 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 M. 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 aliment an insane child transmitted, such 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 were distinguishable.

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 music teacher, died on 16th January 1922, that the late Mr Couper, who was a appears 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. 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.

On the

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



2ND Div. of Mrs Simpson who was being maintained by them in an asylum. They make no claim Edinburgh Parish against the second party in respect of any Council v. aliment that they paid during the lifetime of Couper. the deceased Mr Couper. Their claim deals December 7, entirely with the future.


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I sympathise with the laudable desire of the Parish Council to save the ratepayers expense, but at the same time I think the contention put forward by them in this case is of a startling character. If given effect to, it would or might have both anomalous and disastrous results. But, so far as I am personally concerned and I am dealing with the question as to whether the second party was entitled to distribute the estate as the really practical question in this case-I am satisfied that that question is clearly decided against the contention of the Parish Council by previous decisions. I refer, in particular, to the case of Mackintosh v. Taylor (7 M. 67), and the later case of Howard's Exr. v. Howard (21 R. 787). In the case of Mackintosh, the rubric is in general terms: 'Held .. that a father's natural obligation to support his lunatic son ceases at his death, and that his executor is not bound to set apart executry funds for that purpose beyond the legal share falling to the son at his father's death. Criticism was made of the accuracy of that rubric, and it may be that it is open to criticism, because there are certain senses in which such an obligation as the obligation of a father to support an indigent child does transmit against his undistributed estate. It may even be that it transmits against his representatives. But the important point is that Mackintosh's case, so far as I see, affords a complete justification for the distribution of the estate of a deceased father among the children having legal claims to it, without the necessity of holding it up in consequence of some future or contingent claim. In giving judgment in that case, Lord Ormidale said (at p. 68) : The claim of the advocator in this case is of a very peculiar and, so far as I am aware, unprecedented character. It is made by the inspector of poor for the parish of Brechin, against the respondent, for the maintenance in an asylum of his lunatic brother; and the ground on which the respondent is sought to be made responsible is, that his and the lunatic's father was under an obligation to have provided for the support of his lunatic son, and that the respondent having succeeded to part of his father's inheritance, is to that extent liable jure representationis in the present claim." Lord Mure says (at p. 70): I find no authority for holding that, in such a case" -that is the case where one member of the family was a lunatic and in fact was, at the date of the death of the parent, being main

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tained in a lunatic asylum-" the whole estate is, if necessary, to be applied in support of the brother chargeable to the parochial board, even at the risk of reducing the rest of the family to poverty." In the case of Howard, the widow was the lunatic. She had got her rights in the estate; but, in addition, it was claimed on her behalf by her curator bonis that the whole estate should be held up in order to meet possible claims. No doubt there was an alternative claim, and the Vice-Dean has suggested that this case is not a decision on the point in question. With that view I do not agree. I think the point in this present case was precisely raised in the case of Howard, and the decision is a complete authority against his contention. In giving judgment in that case, Lord M'Laren said (at p. 789): “No authority has been cited for the proposed extension of the doctrine of the liability of the deceased's estate for aliment, and such extension might lead to very inequitable results, for the claim, if it exists at all, must continue through life, and it would be in the power, for example, of a child who had spent his share of the succession to come down at any time upon his more provident brothers and sisters for aliment.”

That case was explained in the subsequent case of Anderson v. Grant (1 F. 484). There the Court gave an additional allowance to a widow who was not in receipt of a sufficient competence from her husband's estate though she had received her conventional provisions. The important point of Anderson's case, so far as the present case is concerned, is that the Lord President explains the decision in Howard's case and explains it, to my mind, in a way which makes it a complete authority against the contention of the Parish Council. His Lordship said (at p. 486): The reclaimer's point is that the Court cannot decern for aliment to a widow out of the capital of her husband's estate. This, I think, is unsound in law. The claim, if it exists, is that of a creditor, and to a creditor there is no distinction between the capital and income of the debtor's estate. The case of Howard's Exr. does not support the reclaimer's contention. In that case, so far as the controverted fund was concerned, there was no existing claim of debt. There was merely an apprehension that in the future a claim might arise, and the proposal of the widow was that the whole of the estate should be retained to meet that contingency.' Lord Kinnear said (at p. 487): The case of Howard's Exr. presents no difficulty as it has been explained by your Lordship who took part in the judgment, because all that it appears to decide is that the widow's claim for aliment, although a personal claim against the husband's

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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."


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, On those authorities the contention of the the result of the decision in Howard is stated Parish Council as to the want of power on both by the Lord President and Lord Kinnear, the part of the second party to distribute to doubt that the situation here and in Howard the estate as he has done is unsound. I is in effect the same. 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

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



2ND DIV. estate at the time he did. I am of opinion
that there is no duty on an executor to make
Parish provision for a claim of this nature before dis-
Council 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.


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).

As regards authority, I am of opinion that the The pursuer appealed to the House of Lords. cases referred to by Lord Hunter, and especially On 26th November 1923 their Lordships, the cases of Mackintosh, Howard, Anderson, and without calling on the respondents, dismissed Davidson's Trs. (1907 S.C. 16), are authorities the appeal, and affirmed the interlocutor direct and pertinent against the contentions appealed from. 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. 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.

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.

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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 Counsel for the First Parties, C. H. Brown, it refers to a third party, a practical plasterer, K.C. (Vice-Dean), Burnet; Agents, R. Addison" as sole arbiter all claims, disputes, questions, Smith & Co., W.S.-Counsel for the Second Party, Gentles, K.C., Duffes; Agents, Mackenzie & Wyllie, W.S. W. R. G.


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

26th November 1923.

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

11. Black v. John Williams & Company manner.”
(Wishaw) Limited.

Arbitration Procedure Examination of witnesses in
absence of party-Reduction of award-Decision of
arbiter on the matter to which those witnesses spoke

in favour of the party seeking to reduce the award

Reduction refused.

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


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