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Scottish Court of Session Decisions >>
Archibald Bontein v Bontein of Mildovan. [1745] Mor 2895 (21 February 1745)
URL: http://www.bailii.org/scot/cases/ScotCS/1745/Mor0702895-099.html Cite as:
[1745] Mor 2895
A father, debtor to his son, having been freed of the debt on account of the beneficium competentiæ; it was made a question, but not decided, whether the son might charge his claim on his father's estate, so as to compete with his other creditors.
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Robert Bontein of Mildovan, by an agreement with Archibald, his eldest son, settled upon him L. 20 Sterling yearly in name of aliment.
Afterwards, falling into bad circumstances, and being incarcerate for debt, he pleaded against his son, who was in a good way, the beneficium competentiæ; the Lord Ordinary, 14th January 1744, ‘found that the father was entitled to the beneficium competentiæ.’
Pleaded in a reclaiming bill, That this benefit was no part of our law, William Dick against Sir Andrew Dick, No 40. p. 409.; 24th February 1669, between the same parties, No 1. p. 1389.; and Harcarse, title Summons, July 1687, Cairns against Cairns of Bellamore, No 2. p. 1389.
2dly, The present aliment was not in constituendo, but was already constitute.
And, 3dly, The action was founded on a contract, not solely on the pietas paterna.
Answered, Wherever an action for aliment would be competent, there this defence behoved to be sustained. There could be few decisions of aliments decreed to parents, because few children would stand pursuits of this sort; but one was condescended on, viz. Brown of Thornydykes against his two Sons, No 82. p. 448. though here, out of regard to the sons, it behoved to be noticed, that the dispute was rather, which of them should be charged with their father's aliment, than if he should be alimented.
The Lords adhered.
There being other points in the petition, particularly how far the son might be allowed to charge his claim on the estate, to enable him to compete with other creditors, though it should be found he could not insist personally against his father. It was remitted to the Lord Ordinary to hear parties thereon. See No 3. p. 1390.
Act. Graham, sen,Alt. Haldane.Clerk, Murray,
D. Falconer, v. 1. p. 80.
