Scottish Court of Session Decisions

This was an action at the instance of Mrs Eliza Horn, wife of Andrew Horn, spirit-dealer in Edinburgh, with consent of her husband as administrator-in-law, and of Andrew Horn for his own right and interest, against Sanderson & Muirhead, Builders, Edinburgh. The conclusions were for £500 of damages for injuries alleged to have been sustained by the fault of the defenders. The pursuers averred that in March 1871 the defenders had been employed to repair a portion of the pavement in Princes Street; that on the evening of the 6th March they had negligently left a piece of the footway unpaved, and without barricade or lamp to warn passengers; that on that evening Mrs Horn was walking along Princes Street, when she stumbled over the place and fell, and was seriously injured in her person. The pursuers further averred (Cond. 7), that in consequence of Mrs Horn not being able to attend to the shop, as she usually did, Mr Horn was obliged to manage the business himself, and that his health suffered from overwork.

After the summons was raised the pursuer Mr Horn was sequestrated.

The Lord Ordinary ( Jerviswoode), by interlocutor dated 20th October 1871, ordered the process to be intimated to the trustee in his sequestration, who declined to sist himself.

An antenuptial contract of marriage between Mr and Mrs Horn was produced, in which Mr Horn renounced his jus mariti and right of administration

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and all other rights competent by law to him, in consequence of the intended marriage, “over the real and personal, heritable and moveable, means, estate, and effects of the said Eliza Rankine, and whole rents, interests, and other income arising furth thereof.” It was declared that she “should be entitled to sue for, uplift, and discharge all debts, and sums of money, and rents of heritable subjects, due and to become due to her, in her own name, alone, and without the concurrence of me, the said Andrew Horn.”

On the 17th November 1871 Mr Horn and the trustee and commissioners on his sequestrated estate executed an assignation in favour of Mrs Horn in the following terms:—

“And now seeing that the said Mrs Eliza Rankine or Horn has required us to execute these presents in terms of the said resolution of creditors, and that it is right and proper that we should do so; Therefore I, the said Andrew Horn, and I, the said William Myrtle, as trustee foresaid, and we, the said Henry Ruddiman Kay, William White, and William Lindsay, as commissioners foresaid, do hereby assign, dispone, convey, and make over to and in favour of the said Mrs Eliza Rankine or Horn, and to her heirs, executors, and assignees, exclusive of the jus mariti and right of administration of me the said Andrew Horn, and any right that may be competent to me, the said William Myrtle, as trustee foresaid, all claims which I, the said Andrew Horn, or I, the said William Myrtle, as trustee foresaid, may have against the said Messrs Sanderson & Muirhead, or the individual partners of said firm, in connection with the subject-matter of the said action of damages, or under said action, with all right, title, and interest competent to us, or either of us therein.”

On the 17th November 1871 the Lord Ordinary, in respect that the trustee on the pursuer's sequestrated estate had failed to sist himself as a party to the process, appointed “the pursuer” to find caution for expenses within ten days.

On the 5th December the Lord Ordinary, in respect of the failure of “the pursuer” to find caution in terms of the preceding interlocutor, dismissed the action, and found the defenders entitled to expenses.

Mrs Horn reclaimed, and maintained that the action at her instance ought not to be dismissed, and that she was entitled to insist in the action without finding caution.

Macdonald and Rhind, for her, argued that, in virtue of the renunciation of the jus mariti in her antenuptial contract, and the assignation in her favour by her husband's trustee, the right of action, so far as her interest was concerned, was completely vested in herself.

Lancaster, in reply, argued that the right to sue for pecuniary damages for personal injury to the wife, was competent only to the husband, and that, as he had become bankrupt and had failed to find caution for expenses, the action must be wholly dismissed. In any view, the wife could not sue without a curator ad litem.

The following cases were cited:— Finlay v. Hamilton, Feb. 6, 1748, M. 6051; Graham v. Hunter's Trs., March 4, 1831, 9 S. 543; Milne v. Gould's Trs, Jan. 14, 1841, 3 D. 345; Smith v. Stoddart, July 5, 1850, 12 D. 1185; Gall v. Bennett, March 7, 1857, 19 D. 665.

At advising—