Daniel Hamilton Macneil, v. Roger H M. Macneil, and Dr. Macneil.
Date: 22 February 1798 Case No. No. 313.
A declarator of contravention and irritancy raised in name of an infant against his father, allowed to proceed under authority of a tutor ad litem afterwards appointed.
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A declarator of contravention and irritancy was raised in name of Daniel Hamilton Macneil, a boy of ten years of age, second son of Roger H. M. Macneil, against his father, as heir in possession of an entailed estate, and against Dr. Macneil, to whom the former had granted an heritable bond over it.
The action was brought by direction of the boy's mother, who lived separate from her husband.
The competency of the action was objected to; but the Lord Ordinary allowed it to proceed in name of a tutor ad litem, and appointed the counsel for the pursuer to suggest a proper person for the office. The defender, in a petition, contended, That it was incompetent and mali exempli for a married woman, herself under curatory, to bring an action in name of her infant child against his father, his legal administrator; 16th November, 1704, Ross, No. 258. p. 6050. Ersk. B. 1. Tit. 7. § 13, 14.: That no injury could be qualified from allowing the claim to lie over till the infant came of age; and that there was a hardship in permitting the action to proceed under authority of a tutor ad litem, whose duty would be confined to the conduct of it, and who would not be subject to expenses, however ill founded might be its conclusions.
It was observed on the Bench, That a child may have many reasons for bringing an action against his father; but before a summons is raised against him, a previous investigation should take place with regard to the grounds of it, and for that purpose a factor loco tutoris should be appointed by the Court.
On the other hand, it was thought, that the action was competent with the appointment of a tutor ad litem, as directed by the Lord Ordinary; 16th January, 1740, Johnston, No. 270. p. 16346; and that if the tutor proceeded in the action, he would be responsible for the conclusions, as well as for the conduct of it.
This and a second petition, 9th March, 1798, were refused without answers.
Lord Ordinary, DunsinnanAct. John Clerk.Alt. Hay, Jo. Dickson.Clerk, Menzies.
Fac. Coll. (Appendix) No. 5. p. 9.
