Mar. 13, 1818. ALIMENT. I see the common lawyers have taught the Scotch lawyers to talk about the delays of the Court of JUS NATURE. Chancery. As to that I say only "sat cito, si sut -ENGLISH “ bene.” SETTLEMENT, &c. Judgment. Lord Eldon, (C.) When we consider the nature May 27, 1819. of this case, the opinions of the Judges of the Court of Session are certainly rather a surprise on an English lawyer. But we ought to recollect, and if we do not admonish ourselves, others will give us the admonition, that we ought not to consider Scotch cases under the influence of English impressions. (Lord Redesdale. This is an English case.) The Noble Lord says that this is an English case; and when we look at the notes which we have of the observations and comments of the Judges, if we ought, in the administration of Scotch law, to recollect that we are English Judges, I venture very respectfully to hint to them that, when they are dealing with questions of English law, they should recollect that they are Scotch Judges. This is an English case; and it appears very strange on English principles, that when the children are by a marriage settlement made purchasers of the principal of the subject, and the parent of the interest of it for life, they should be entitled not only to their own share, but that jure nature they should be entitled to a part of the parent's share. This settlement was made and the marriage solemnized in 1791. Maidment was in debt, and died in 1804, and he and his creditors being out of the question, she was entitled for her life according to the marriage articles. The Respondent stated in his ALIMENT. -ENGLISH case that his mother had always supplied him li- May 27, 1818. berally till her marriage with Captain Landers, and that then her liberality had been discontinued. JUS NATURE. Then this action was brought, and the result was, SETTLEMENT, on the ground there stated, a judgment that she &c. was obliged to aliment him; the parties respectively having the interests mentioned in this marriage settlement. By the first interlocutor the Court decerned for 50l. to the Pursuer in the name of interim aliment, and ordered memorials and condescendences. The Appellant petitioned against this interlocutor, but the Court adhered, and sustained the claim of aliment, super jure naturæ, but before modifying the amount ordered a more particular condescendence of the funds in the mother's power. When this was before the Judges below there was a difference of opinion, and instead of proceeding further below, the Appellants appealed, as parties are entitled to do from interlocutory judgments where there is a difference. The case is to be considered, not merely with reference to the point of the jus naturæ, and the means of the parent to aliment, and other circumstances, but with reference to the doctrine of Scotch law, when applied to the effect of an English settlement. I do not state any of the adjudged cases as to liferenters and fiars, as this case cannot be considered in that view. The real question is whether, after a contract had been made, by which the children were to have the principal of her fortune, and she was to have her own maintenance for life out of the funds, she was obliged to aliment the Respondent out of her share. The obligation between parent and May 27, 1818. child in Scotland is different from ours. ALIMENT. -ENGLISH SETTLEMENT, &c. Here it is almost gone at the age of majority, whatever it may JUS NATURE. be in a moral view. But according to the Scotch law, although a provision is made for the children; if not payable at the time of majority, they are entitled to aliment even after their majority, and regard is paid to their having no means, and to their ability to support themselves in the circumstances in which they have been educated; and some cases go even the length of reference to the dignity of the family, which we could not reach at all. And the case of Ayton v. Colville justifies what the judges say as to advocates. The fact that the Pursuer was an advocate was there stated as a defence, but the defence was repelled for the reasons there stated. Now in this case it does appear to me impossible that on the ground either of the jure naturæ, or the office of advocate, this judgment can be sustained. Here is the case of one who need not wait the delays of the Court of Chancery. He has an immediate vested interest in a large share of the property, and may deal with it in the market, in which his interest would be better than that of his mother; and he is first tenant in tail in remainder of the lands to be purchased; and he had therefore sufficient aliment. It does appear to me therefore, in considering these circumstances, that this is not a case where aliment ought to be allowed according to the law of Scotland. I propose therefore that the judgment be reversed with something of this nature, that the Lords having regard to the marriage settlement, and the provisions of it, therefore reverse the judgment, Mr. Warren.-Would your Lordships give costs May 27, 1818. to the Appellants. ALIMENT. JUS NATURE. . Lord Chancellor.-I am apprehensive we cannot give costs, where three Judges out of four are with -ENGLISH the Respondents. Judgment accordingly REVERSED. SETTLEMENT, &c. SCOTLAND. APPEAL FROM THE COURT OF SESSION. WADDELL and another-Appellants. A. by disposition and settlement, gives his moveable pro- Mar. 9, 1818. perty, except the debts due to him, to B. the object of his particular favour; and the residue of the debts due to SETTLEMENT. him, after payment of the debts due from him, to B. in -LIFE RENT life-rent and to C. in fee; and gives the life-rent in his ER.—DEBTS, lands to B. and the fee to C.; declaring that B. by acceptation of the deed, should be bound to pay the whole of his debts; manifestly conceiving that his moveable property would be much more than sufficient for payment of his debts, and intending that B. should have the liferent in the lands free. The moveable property turns out not to be sufficient to pay the debts, and action brought by the life-rentrix against the fiar for relief and sale of so much of the lands as would pay the balance, &c. and re-, lief decreed below. But the judgment reversed in Dom. Proc., the disponer, although he intended that B. should have the life-rent free, having expressly subjected B. alone to the payment of his debts, for which she became liable to the amount at least of the benefit which she derived from the deed. THIS action, was brought by Jean Waddell, sister of the late William Waddell, of Easter Moffatt, SETTLEMENT. ER. DEBTS. Mar. 9, 1818. against the Appellants, his nephews; and the object was to fix upon the Appellants a liability for certain -LIFE RENT- debts of the deceased, which, they contended, rested exclusively on the Pursuer. The question depended on the effect of a disposition and settlement, executed by the late William Waddell, under which the parties on both sides derived valuable interests. Disposition. By that disposition the disponer gave to his sister May 6, 1803. Jean, the Pursuer, all his lands and heritages in life rent; also all debts and sums of money heritable, and moveable, that should be due to him at his death, and all corns, cattle, &c. and in general, all his moveable subject. And particularly, and without prejudice to the said generality, he gave under the burdens, &c. under-written, to Jean Waddell, in life-rent, and to the Appellants in fee, all and whole the respective lands, and others, &c.-"But declaring always that the said Jean Waddell shall be bound "and obliged, as by acceptation hereof she binds "and obliges herself, to pay all my just and lawful debts, with my funeral charges and expenses, and any gifts or legacies I may think proper to leave by a writing under my hand." And then he appointed Jean Waddell to make payment to his sister Christian Waddell, of a yearly annuity of 201.; and gave 1,000l. to his niece Margaret Waddell, and 1007. to Agnes Gardner, and 700l. to another niece named Margaret Waddell, which sums were to be paid by the Appellants, or those who might succeed to the fee of the lands. And then he assigned and made over to the Appellant George Waddell, in fee, all debts and sums of money that should be due to him at the time of his death, and empowered Jean Wad 66 |