Scottish Court of Session Decisions

Lord Young—This is an action by the mother of an illegitimate child for injuries that child received in the defenders' pit. Two preliminary defences are stated, the first being that she has no title to sue, and the second that her husband, who is still alive, is not a party to the action. The husband has become a party to the action, so that the Court has no further occasion to consider that plea. The other plea (“no title to sue”) remains for our consideration. It has been decided by the Sheriff-Substitute that the pursuer has a title to sue—that is, that the mother of an illegitimate son is entitled to recover damages for any fault whereby he, is injured. The Sheriff-Substitute in his note says—“The first of these pleas raises the question whether the mother of an illegitimate child has a title to sue an action of damages and solatium for the death of the child. So far as I am aware this question has never been authoritatively decided by the Supreme Court. Cases of reparation have hitherto been confined to fathers and mothers and their lawful children, and in the two cases of Greenhorn v. Addie, June 13, 1855, 17 D. 860, and Eisten v. North British Railway Company, July 13, 1870, 8 Macph. 980, the Court refused to sustain the title of brothers or sisters to sue such actions. In the latter case, however ( Eisten v. North British Railway Company, 1870), the Lord President (Inglis) observed—‘It appears to me that the true foundation of this claim is partly nearness of relationship between the deceased and the person claiming on account of the death, and partly the existence during life, as between the deceased and the claimant, of a mutual obligation of support in case of necessity. On these two considerations in combination our law has held that a person standing in one of these relations to the deceased may sue an action like this for solatium where he can qualify no real damage, and for pecuniary loss in addition where such loss can be proved.’” I have read that passage because it accurately states that there has hitherto been no such actions sustained. There is an exception which the Sheriff-Substitute notices, and to which I shall refer immediately, but there is no instance of any such action having been prosecuted. The question has never been authoritatively decided by the Supreme Court, and I think it is true that cases of reparation of that kind have hitherto been confined to fathers and mothers and their lawful children. That is the customary law of the land. There is no custom that is common law extending beyond fathers and mothers of legitimate children. I am not aware that there is any statute upon the subject. In fact there is none. This matter stands in England upon statute—Lord Campbell's Act—and it is the most recent legislation on the subject, not for Scotland but for England. The law there stands upon statute, and thereby no action is given to a parent for injury to an illegitimate child. This we may take to be the view of the Legislature in the most recent instance of any legislation upon the subject. There is no statute therefore in Scotland to support such an action as this, and it is not according to any practice, for there has not been such an action hitherto, and there is no custom to support it. There was an action of that sort by the mother of an illegitimate child for the death of the child under similar circumstances brought before Lord Jerviswoode, and he repelled the plea of no title to sue. The case does not appear to have gone any further. The Sheriff-Substitute notes that Lord Shand was counsel in the case, and did not carry that judgment to the review of the Court, and that he must have been of opinion that it was sound. I do not say anything in disparagement of this view at all. Lord Shand's opinion even then would be entitled to respect, but I do not deduce from the circumstance that the case went no further what Lord Shand's opinion was. It may very well have been prudent—the almost certainty is that it was prudent—not to have any further litigation about a claim which may have been settled for less than the expense of taking the case to the Inner House or to the House of Lords. But the opinion of Lord Jerviswoode in that case has been referred to. There is no other authority. I think that leaves the question entirely open for our consideration. I think that single expression of opinion by a Lord Ordinary is not evidence upon the customary law upon this subject. I think there is no customary law upon this subject. The custom has been against it, and it cannot be otherwise without express decision, and there has been no such action sustained subject to the instance to which I have just referred.

Another case brought forward in argument, and referred to by the Sheriff-Substitute, is a case in this Division of the Court—the case of Samson v. Davie—in which it was held that a legitimate son was liable in relief to the poor law authorities who had made advances for the relief of his mother. If that case were decisive of this I think we should require further argument, and probably further consideration, if not a reference to more Judges. But I think very clearly it is not. I may say in passing with reference to that case—although we decide nothing against it here, for we do not require to say anything upon that subject—that in my humble opinion it merits consideration. The action was brought by the inspector of poor for £3 odds advanced to the mother. He was allowed to prove that the defender was the illegitimate son of the pauper, and therefore liable to him in that relief. It was decided that although during a pretty long life he had only seen the woman twice, and did not know she was his mother, yet she was, and he must pay. I dissented from that judgment at the time. I thought then, and think still, that

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