Scottish Court of Session Decisions

The respondent, Margaret Ogg, having, in 1816, borne a child to the son of the advocator, Gibb, raised a summons of damages against him for alleged breach of promise of marriage. Thereafter, of date 22d October, 1817, the advocator entered into an agreement with Charles Ogg, brother to the respondent, of which an improbative minute was made and signed by them, of the following tenor:—“It is agreed upon between Mr James Gibb, farmer, Bridge of Dye, and Mr Charles Ogg, schoolmaster, Banchory, that whereas Margaret Ogg, sister of the said Charles Ogg, did, in the month of November last, bear a daughter, of which John Gibb, son of James Gibb, acknowledged himself the father; and for the maintenance of said child, it is agreed upon betwixt Messrs Gibb and Ogg, that Mr Gibb shall pay for the first two years after the birth of said child, the sum of £6 sterling yearly, and £4 a-year for the space of other eight years; binding himself also for the remainder of inlying expenses, being 11s. sterling. This is in full of all demands for the maintenance of said child and mother.”

Proceedings under the summons of damages were thereupon dropped, and the advocator paid the first year's aliment as stipulated, taking a receipt from Charles Ogg on behalf of his sister, for the amount, as “being in full of all demands on account of said sister, and her child Helen Gibb, for one year.” He afterwards, however, refused to continue the payment; and in 1824, Margaret Ogg raised a summons against him before the Sheriff of Kincardine, in which it was expressly set forth that the obligation had been undertaken by the advocator, “provided the said action of damages was dropped;” and that in consequence she “agreed to drop the said action of damages, and withdrew the same accordingly.”

The memorandum of agreement above-mentioned had fallen aside, and could not be discovered, and the process lay over for some time; but, in 1832, the memorandum was accidentally found, and having been stamped, was produced in process. The sheriff pronounced this interlocutor:—“Having resumed consideration of this process, in respect of the terms of the missive or memorandum of agreement, No. 22, which the defender does not deny having signed, and which is now duly stamped as required by law; in respect that the action of damages raised at the instance of the pursuer, Margaret Ogg, against the defender's son in the Court of Session, was no farther insisted in, after the said agreement was executed, but was virtually abandoned in consequence thereof; in respect of the farther rei interventus following on the said agreement, by payment of the first year's aliment therein stipulated, as instructed by the receipt, No. 20 of process; in respect also of the defender's letter of 4th March, 1822 (No. 6 of process), recognising and acknowledging the said agreement, and of his judicial admission in No. 7 of process, relative thereto; and in respect the pursuers declare their readiness to discharge the foresaid action of damages, on the defender's fulfilling his part of said agreement, repels the defences, and decerns against the defender at the instance of the pursuers, Margaret Ogg and John Mollison, her husband, for his interest, and Charles Ogg, conform to the conclusions of the libel, so far as respects the principal sums of aliment therein concluded for; but, in the circumstances of the case, finds no interest due; also, decerns against the defender for inlying expenses, as libelled, under deduction of ten shillings, admitted by the pursuers to have been paid in part thereof; finds the defender liable to the pursuers in expenses of process, subject to modification, and in one-half of the expense of stamping the said agreement, and allows an account of expenses to be given in against the 24th instant; the pursuers, on receiving payment of the sums decerned for in this process, always delivering to the defenders a valid and formal discharge, executed at their own expense, of the said action of damages raised at the said Margaret Ogg's instance, against the defender's son, in the Supreme Court.”

Gibb brought an advocation, in which the Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“Having considered the closed record, and heard counsel for the parties thereon, finds it admitted that the advocator negotiated with Charles Ogg, as sufficiently authorized to transact with him as to the claims of Miss Ogg against his son; and in respect that, by the terms of the instrument of agreement produced, when followed by the also admitted rei interventus, by payment of the first year's aliment, and acceptance of the receipt in process, all claim under the action at Miss Ogg's instance was effectually discharged; and also, for the reasons assigned by the sheriff, repels the reasons of advocation, and remits the cause simpliciter to the sheriff, and decerns; finds the advocator liable in expenses; allows an account thereof to be given in, and when lodged, remits the same to the auditor of Court, to tax and report.”