A v B. May 14, 1907. Sheriff MONCRIEFF.

In

LANARESHIRE. exceeding in amount any sum which could be due by him to the pursuer. Amongst the books sent by the defender for the pursuer's inspection was a small one in which certain entries had been made during a period when the regular book was out of his possession and in that of his partner. answer to a question put by myself, the pursuer said that he ignored the items in this small book because there were no vouchers to support them. But he did not search for them nor intimate to the defender that he had failed to produce them. The result of ignoring or overlooking these items. was to bring out a balance and issue an award in favour of the other party to the reference and against the defender. The defender and his wife, who seems to have been well acquainted with her husband's business, felt that there must be something wrong, and that the balance ought to be the other way. It may be doubtful whether the pursuer's attention was called by them to the matter before delivery of his findings, but this is clear that immediately after the award was issued the defender's wife found lying on the pursuer's table and in his presence certain vouchers to which no effect had been given, relating, I understand, to the matters detailed in this small book. The result was at once obvious; the balance should have been in the defender's favour. The pursuer immediately did what he could. He wired to the defender's agent, also to the agent of the defender's former partner, and he wrote to both agents intimating that there must be a correction made. But the award was, except of consent, now beyond recall, and those in whose favour it stood, perhaps not unnaturally, refused to give it up. Not until the defender had incurred some £14 of costs did he succeed in getting his late partner to consent to a fresh award. It is in these circumstances that the defender pleads against the pursuer, "your blunder has already cost me more than the sum you claim from me." It is a plea most clearly equitable, and I am unable to see grounds in law why it should be repelled. This legal principle is surely quite clear, if any one, either for reward or gratuitously, undertakes a duty on behalf of another, and, through his negligence, that other person suffers, a claim of damage or relief arises. Such is the law with regard to law agents and trustees, who act without fee or reward. Now, that there was negligence here, and that that negligence caused loss to the defender, is, I think, clear. These vouchers to which the pursuer failed to give effect had been duly given to him by the defender. They were found amongst a bundle of sale notes, which the pursuer admits he did not examine, as he could get his information from another source. It is not proved that the vouchers were originally

handed to him mixed up with the sale notes; but even although they were, it was, I think, his duty to open up the bundles and see what they contained. He cannot have done that. Failing to find the vouchers, he should have called for an explanation, instead, as he says he did, of ignoring the items which seemed to him to be unvouched. Then, how this negligence led to the defender's loss I have already shown. It seems to me, therefore, that the defender's position now taken up is a reasonable one. At common law, it must be kept in mind, an arbiter cannot sue for a fee. He does so here because the parties agreed to give him one, but that agreement was surely made on the assumption that he would exhibit ordinary diligence in placing before him the facts of the case.

At the same time, I do not think this a case for costs. The latter part of the counter claim seems hardly fair to the pursuer, implying that it was his personal unwillingness to resume consideration of the case which involved the

defender in expenses. The agent for the defender's partner
put the matter in its true light when he explained the
position taken up by his client in holding by the first award.
For pursuer-Mr. KERR A. SIMPSON, Lesmahagow.

For defender-Mr. WILLIAM LIGHTBODY (Messrs. MORISON &
SMITH), Lanark.

SHERIFF COURT OF PERTHSHIRE.

Poor MARY ANN RANKIN, Pursuer; DAVID HUTCHISON,

Defender.

Promise-Unilateral obligation-Rejection-Subsequent
claim for fulfilment Written offer to aliment
bastard. The mother of a bastard child received
from a man a letter acknowledging that he had
had connection with her such as might account
for the birth of her child,
willing to pay aliment.
an action of filiation
respect of the child.
she continued that
against her.

and saying that he was
She had already raised
against another man in
After receiving the letter
action, and it was decided
Held that she had rejected the

promise of the writer of the letter, and could not

maintain another action against him as being the
father.

The facts of the case and the arguments advanced are sufficiently stated in the note of the Sheriff-Substi

tute (SYM) which was as follows:

LANARKSHIRE.

A v B.

May 14, 1907.

Sheriff MONCRIEFF.

No. 87. PERTHSHIRE.

Rankin v Hutchison.

Sheriff SYM.

This action is brought to recover inlying expenses and March 30, 1907. aliment in respect of an illegitimate child to whom the pursuer gave birth on or about 22nd June, 1906.

The action

is not based upon any allegation that the defender is the

PERTHSHIRE.

Rankin v Hutchison. March 30, 1907. Sheriff SYM.

father of that child. It is not based upon any averment that the defender had sexual intercourse with the pursuer at a time which would account for the conception of the child, or indeed at any time. It is based upon the averment that the defender-who, as is not now, it is understood, denied, is a lad of about nineteen years of age granted a certain letter on 24th September, 1906. It bears, "Newton of Logierait, 24th September, 1906.-I acknowledge that I had connection with Mary Ann Rankin (the pursuer) at West Mains of Ballechin, in the farmhouse there, the Saturday night before Little Dunning market [October], 1905, and that I am willing to pay aliment for the child of which she was delivered on or about 22nd June, 1906." The letter bears to be addressed to Mr. C. H. Gordon, solicitor, at the time agent for the present pursuer. It is on a paper stamped with a sixpenny agreement stamp, and is a tested writing. One of the witnesses (Mr. Gordon) was at one time agent for Mary Ann Rankin, the pursuer. The other was at 24th September, 1906, the employer of the defender. The action, then, is laid upon a promise to aliment the child, behind which promise, Mr. Forrest says, lies a moral obligation to support a child which may be the fruit of the immoral act of the defender, if what he acknowledges is true.

The pursuer's first plea is, "The defender having agreed and undertaken to aliment pursuer's illegitimate child, decree should be granted." A promise, according to the law of Scotland, differs from an offer in this respect, that the latter is a conditional obligation only and needs to be accepted, while the former is, if intended as a final engagement, "a unilateral engagement to which acceptance is presumed" (Bell's Principles, sec. 9; vide also as to offers, Malcolm v Campbell, 19 R. 278; Morton's Trustees v Aged Christian Friend Society of Scotland, 2 F. 82 (Lord Kinnear); Shaw, 19 R. 997; Cambuslang West Church v Bryce, 25 R. 322; also Hawick Heritable Investment Company v Haggan, 9 S.L.T. 475 (Lord Kyllachy)). A promise must be established by writ or oath of the alleged promissor (Lord Kyllachy supra), and here writ is offered. A promise, though acceptance be presumed, may be rejected by the person to whom the promise is made. He may refuse to accept the thing offered or proposed, and, if he do, the promise will not hold. The presumption of acceptance thus disappears. A man may refuse to accept a promised £5, and if he do he cannot come back and ask for it. It is thought that the refusal to accept may be evident by conduct as well as expressly.

The following facts are not in dispute:-On 31st

Rankin v Hutchison

May, 1906, the pursuer raised an action in this PERTHSHIRE. Court against James Robertson, another farm servant at Ballechin, to have him ordained to pay inlying expenses March 30, 1907. and ordained to pay aliment in respect of the birth and Sheriff SYM. existence of this very child born 22nd June, 1906. She averred that he had intercourse with her at the time of conception, and that he was the father of the child. James Robertson lodged defences denying intercourse and denying paternity. He stated that the pursuer had had connection with a certain Robert Robertson. He also stated that she had had connection with David Hutchison, the present defender, upon 29th August, 1905, at which time the present defender would be about sixteen years old-Hutchison was admitted to the Fechney Industrial School in 1896 at the age of eight-and also on 4th September, 1905, and "on the Saturday before Little Dunning market," 1905, which Saturday falls about the third week of October. The pursuer denied these averments. A proof was allowed. It was eventually fixed to proceed upon 6th December, 1906. The agent who was then acting for the pursuer visited the district on 24th September to see the witnesses likely to give evidence in the case. He learned that, truly or not, the present defender would admit having had connection with the pursuer, his client. He then obtained from him the letter which has been quoted. The defender makes a number of averments which are denied, relating to the circumstances of the giving of the letter and the mode by which he was brought to sign it. These may be at the present put aside that the narrative of admitted facts may be

continued.

The proof was led on 6th December. The pursuer's evidence was that she had connection at the time of conception with James Robertson, that he was the father of her child, and that she never had connection with David Hutchison, the present defender. On the other hand, the defender James Robertson called David Hutchison as a witness. He affirmed that he had had connection with the pursuer. The letter was not produced in that process. The present Sheriff-Substitute, after hearing the evidence, and expressly (as he recollects) without giving any opinion as to the truth of David Hutchison's evidence, assoilzied James Robertson.

Now comes this action, based upon the view that, whether the defender had connection with the pursuer or not, he, when he was being precognosced as a witness in the proceedings against Robertson (for it is expressly admitted that it was on the occasion of a precognition that the letter was granted) undertook liability to pay aliment, and that the pursuer is entitled to found upon his promise.

PERTHSHIRE.

Rankin v Hutchison.

Sheriff SYM.

It appears to the Sheriff-Substitute that on the admitted facts the action cannot be maintained. If so, it is unnecesMarch 30, 1907. sary to inquire into the defender's statements about the obtaining of the alleged obligation from him (being still in minority). The pursuer, in the knowledge of this alleged promise to contribute to the maintenance of her child, proceeded with the action against the man James Robertson. He was a foreman ploughman, who had long held his place, and was a far better person against whom to hold a decree than this boy. Had she got that decree, she could surely

June 21, 1907.

Sheriff JOHNSTON.

not have held this defender bound under his letter as a sort of cautioner. It is exactly the same, however, when she lost her action. The proceeding with that action appears to the Sheriff-Substitute to be an answer to the view that the promise was to be presumed to have been accepted. It shows that it was not. The circumstances make it impossible, in the view of the Sheriff-Substitute, that it can now be enforced.

In what has been said everything has been assumed in
favour of the writing as a promise.
It does not carry

inlying expenses, which are sued for.
to the pursuer.

It is not addressed

It is somewhat indefinite. But these

things might be got over.

The Sheriff-Substitute has not adopted the argument that the cases about electing a debtor and suing him to judgment in full knowledge of the facts are applicable, though they are not remote in principle.

A consideration which has caused him some thought was not referred to by the parties. In these actions the child's interest is not to be omitted. It has even been said that the action is to be regarded in an important aspect as an action on the child's behalf. Had the child then a jus quæsitum in the promise? It is not without doubt that this view is set aside.

Mr. Mitchell referred to Bell's Principles, secs. 72, 73, 74, and to Stair, i. 10, 4. The latter authority touches somewhat the view stated in the last paragraph. Quoad ultra, it seems to support the view which has been expressed. J. D. S.

The pursuer appealed to the Sheriff (JOHNSTON), who issued the following interlocutor and note:

PERTH, 21st June, 1907.-The Sheriff refuses the appeal, and affirms the Sheriff-Substitute's interlocutor of 30th March, 1907; finds the defender entitled to additional expenses, to be included in the account already allowed.

CHRISTOPHER N. JOHNSTON. Note. In my view when the pursuer, after receiving the