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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ormond v. Borries [1866] ScotLR 1_212 (10 March 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0212.html
Cite as: [1866] ScotLR 1_212, [1866] SLR 1_212

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SCOTTISH_SLR_Court_of_Session

Page: 212

Court of Session Inner House First Division.

Saturday, March 10. 1866.

1 SLR 212

Ormond

v.

Borries.

Subject_1Cautioner
Subject_2Bond of Presentation
Subject_3Liberation.
Facts:

A person having been apprehended under a medilatione fugae warrant, the petition for which stated that the claim was for the aliment of a natural child which was conceived in August 1864, and the cautioner being afterwards sued on the bond under a summons in which the child was said to have been conceived in July 1864, held (aff. Lord Kinloch) that this variance did not liberate the cautioner.

Headnote:

The pursuer gave birth, on 11th March 1865, to an illegitimate child, of which she alleged that one of the defenders, a lad of about sixteen years of age was the father. In November 1864, having been informed that he was about to emigrate to Australia, she presented a petition to the Sheriff of Forfarshire against him as in meditatione fugæ. In this petition she expressly averred that the intercourse which afterwards resulted in the birth of a child took place “on various occasions between the 8th and 27th days of August 1864.” Under this application he was apprehended, but afterwards liberated on his father, the other defender, granting a bond of presentation for him.

After the birth of the child the pursuer raised this action against the alleged father, and also against his cautioner, founding on the bond of presentation. The intercourse was now alleged to have taken place “on the 11th and subsequent days of July 1864.” The cautioner pleaded that in consequence of this variance he was not liable under the bond, the conception of the child, in regard to which he became bound to present his son, having taken place in August 1864. This plea was repelled by the Lord Ordinary (Kinloch), and the cautioner reclaimed. He argued that he had granted the bond in consequence of the statement in the petition that the child was conceived in August, which he knew could not be true if his son was its father. The variance was therefore material. He founded upon Campbell v. Hamilton, 20th January 1789 (Hume 82), and M'Neill v. Stewart, 18th November 1823 ( 2 S. 439 N. E.). The Court, without calling for a reply, adhered.

Judgment:

Lord Curriehill—The objection stated comes to this—the debt sued for is not the debt in respect of which the cautioner became bound. I think that cannot be maintained. The debt was a claim for the aliment of a natural child of which the pursuer was at the time pregnant. That is just what is now sued for. I think therefore the identification is sufficient. If it should turn out that the other defender is not the father of the child, then the cautioner will be free. But that is all reserved.

Lord Deas—The question is whether the bond applies to the debt in dispute. I think it does. The mention in the petition of the date of the intercourse was a superfluity. The two cases founded on were quite distinguishable from the present.

Lord Ardmillan concurred. He thought the defence was an attempt to take advantage of what was a manifest error.

The Lord President was absent.

Counsel:

Counsel for Pursuer— Mr J. G. Smith and Mr R. V. Campbell. Agent— Mr H. Forsyth, W.S.

Counsel for Defender— Mr William Thomson. Agent— Mr David Milne, S.S.C.

1866


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URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0212.html