Scottish Court of Session Decisions

This was an action at the instance of Elizabeth Anderson or Flann, now Skinner, and her husband, Thomas Flann, against the trustees and executors of the late Mary Anderson, Aberdeen, the mother of the female pursuer, for the purpose of obliging them to pay over her share of legitim and dead's part. Shortly after the institution of the action the female pursuer was placed in an asylum. The defenders pleaded that Thomas Flann had no title to sue the present action, in respect that he was not the lawful husband of the female pursuer, George Skinner, her husband, being still alive; and that the female pursuer had no title to sue without the concurrence of her lawful husband Skinner. A proof was allowed of these averments, and on 20th March 1869 the Lord Ordinary ( Muke) found it proved that in 1846 Elizabeth Anderson was married to George Skinner, who in 1853 left Aberdeen and went to sea and has never since returned. He also found it not proved that Skinner was dead in June 1864.

Thereafter, in consequence of these findings, the Lord Ordinary found that Flann had no title to pursue the action, and in July 1869 he appointed a curator ad litem to Mrs Skinner, who was still in confinement.

In November 1869 Skinner returned to Aberdeen, and intimation of this action was made to him, but he did not enter appearance, and in the meantime Mrs Skinner had left the asylum.

In these circumstances the Lord Ordinary pronounced the following interlocutor:—The Lord Ordinary having heard parties' procurators, on the motion of the defenders, to have the action dismissed, with expenses, in respect that the pursuer, Thomas Flann has been found to have no right or title to insist in the action; and that George Skinner, the husband of the female pursuer, who has returned to Aberdeen, has not appeared as a party-concurrer in the action; and, on the countermotion to have a curator ad litem appointed to the female pursuer; and made avizandum, and thereafter considered the closed record and whole process: Refuses the motion for appointment of a curator ad litem: Sustains the first plea in law for the defenders; and dismisses the action; and decerns: Finds the defenders entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the auditor to tax and report.

Note.—The position of the female pursuer in this case is now very different from that in which she was when a curator ad litem was appointed to her in July last. She was then in a lunatic asylum, and her husband, though not proved to be dead, was not known to be alive; and if dead, and his death had occurred prior to the 30th of June 1864, she had a clear title to sue, in her own right, for the share of the moveable estate of her father sought to be recovered under the present action. The case was therefore, at that time, one fitted in the opinion of the Lord Ordinary for the appointment of a curator ad litem. But the pursuer is now no longer confined in an asylum, and her husband has come home to Aberdeen; and, although intimation of the dependence of this action has been duly made to him, he has not sisted himself as a party. In these circumstances it appears to the Lord Ordinary—having regard to the very decided opinion of Lord Moncrieff in the note to his interlocutor in the case of Tait, 4th June 1831, and to those of several of the Judges in the First Division when disposing of the case—that the pursuer has not now any title to insist in an action for the recovery of monies without the concurrence of her husband, to whom these monies, if recovered, would, jure mariti, exclusively belong.

“The main ground on which it was concluded that a curator ad litem should be named to the pursuer to enable her to proceed with the action, was, that under the Conjugal Rights Act 1861, married women are now entitled to take steps for the protection of property to which they may succeed, against a deserting husband. This, however, is not a proceeding under that Act; and it was not alleged that any such application was in contemplation. When such a proceeding is taken with success, it may be that the pursuer's title to sue such an action as the present will be materially strengthened. But, as at present advised, the Lord Ordinary would not be warranted in assuming that the pursuer must necessarily succeed in showing that she was deserted, and ‘without reasonable excuse,’ which is essential to her obtaining the protection of the statute.”

Mrs Skinner reclaimed.

Thoms and Rhind, for her, pleaded that a curator ad litem should be appointed, or otherwise, that in the circumstances the action should be superseded to enable her to take advantage of the provisions of the Conjugal Rights Act 1861.

Page: 398↓

Balfour in answer.

At advising—