Scottish Court of Session Decisions

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Cite as: [1880] SLR 17_269, [1880] ScotLR 17_269

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SCOTTISH_SLR_Court_of_Session

Page: 269↓

Court of Session Inner House First Division.

[Sheriff of Edinburghshire.

Thursday, January 8. 1880.

17 SLR 269

Cunningham

v.

Smith.

Subject_1Minor
Subject_2Process
Subject_3Curator ad litem
Subject_4Where Illegitimate Minor was Defender and no Curator ad litem Appointed.
Facts:

Where an illegitimate minor who had no curator had unsuccessfully defended an action of aliment in the Sheriff Court without a curator ad litem being appointed to him, held on appeal (1) that a plea “that the action ought to be dismissed in respect the defender is a minor, and ‘his tutors and curators, or his father as his administrator-in-law, have not been called as defenders,” ought to be repelled; but (2) that the defender was entitled to have a curator ad litem appointed, who should determine whether the minor's interests had suffered by the neglect to make the appointment in the Sheriff Court.

Headnote:

The defender in this action of filiation was born on the 8th August 1859, and consequently was still a minor when the case was called in the Sheriff Court on 16th May 1878. He pleaded, inter alia—“(2) The action ought to be dismissed, in respect the defender is a minor, and his tutors and curators, or his father as his administrator-in-law, have not been called as defenders.” He had no curator, but neither the Sheriff-Substitute ( Hallard) nor the Sheriff ( Davidson) considered it necessary to appoint a curator ad litem to him; the Sheriffs, proceeding entirely on the facts, found for the pursuer.

The defender appealed, and argued—(1) The action was badly called, because the minor's tutor and curators and his father had not as a matter of form been called. (2) The Sheriffs ought to have appointed a curator ad litem as soon as the defender's minority and want of guardianship was brought under their notice, and as a conse quence of this neglect the whole proceedings were absolutely null, and ought to be set aside.

Authorities— Dalgleish v. Hamilton, June 26, 1752, M. 2184; Calderhead v. Fyfe, May 26, 1832, 10 S. 582; Brown v. Wilson, January 15, 1842, 4 D. 392; Lockhart v. Thomson, June 9, 1860, 22 D. 1176; Mackay's Court of Session Practice, i. 346; M'Glashan's Sheriff Court Practice (Barclay's ed.), sec. 512; Fraser on Parent and Child, 2d ed., 158 and 379.

Argued for the respondent—(1) It was not necessary in Sheriff Court practice to call tutors and curators, and that was reasonable, for the pursuer was not bound to know that the defender was a minor. (2) Reduction was not competent, because the decree was still unextracted, and was under appeal. The defender, however, might get a curator ad litem appointed now, who on cause shown might have the case opened up.

At advising—

Judgment:

Lord President—In this case of filiation it appears that the defender is a minor, and also that he is a bastard, and when the case came into Court he put this plea on record—“The action ought to be dismissed in respect the defender is a minor, and his tutors and curators, or his father as his administrator-in-law, have not been called as defenders.” It appears to me that this plea is bad.

In the first place, it was impossible to call his father, because though every man has a father de facto, he had none de jure, and the Court could not ordain the father of a bastard to appear in an action, nor if he did appear could the Court recognise his presence. Nor, in the second place, can a bastard in the ordinary case have curators, because he has no relatives, and the intervention of the minor's relatives is necessary in order to the appointment of curators in the ordinary way. No doubt the Court in the exercise of its high equitable jurisdiction has appointed curators to minors who had no relatives whom they could call; but that has been done only when the minor was possessed of estate which could not otherwise be protected. Here it is plain that the defender has no such estate, and therefore as he has neither father nor tutors or curators, I think his plea that they should have been called is bad.

But it was contended by the counsel for the defender, that because the Sheriff had neglected to appoint a curator ad litem to him, the whole proceedings are void, and must be quashed as absolutely null. Now, I do not doubt that when the Sheriff's attention was called to the fact that the defender was a minor indefensus he ought to have appointed a curator ad litem. But it is a totally different matter to hold that the whole of these proceedings are null, and I am clearly of opinion that they are not. A minor who has no curator can do many things without having a curator appointed, subject only to this qualification, that the minor is entitled to have what he has done set aside within the quadriennium utile on the ground of lesion; and I do not doubt that judicial proceedings, like other actings by a minor, may be set aside ex capite lesionis within the quadriennium utile. Nor do I doubt that the defender would be entitled even in this process to show that in consequence of having had no

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curator ad litem he had suffered lesion, and that the proceedings should be set aside and a trial of new ordered. But that is not what he asks for. I do not think that we could possibly entertain his request without in the first place remedying the defect of which he has so vehemently complained, by giving him a curator ad litem. Our first duty will therefore be to appoint a curator ad litem, and if he and the minor can show that the minor has been prejudiced by the want of a curator, we shall then consider what ought to be done. But at present we can do nothing more than appoint a curator.

Lord Deas and Lord Mure concurred.

Lord Shand—I am of the same opinion. The defender's first point is that his tutors and curators ought to have been called as defenders in the usual way, either edictally or personally. But it is admitted that he had no curators, and I cannot see either the necessity or meaning of calling curators in such circumstances. I think, however, that the Sheriff should have appointed a curator ad litem, because it is a general rule of our Courts that a minor should have a curator ad litem to see that the proceedings in the litigation are properly conducted on his behalf. And I think that this rule leads to two results in this case. In the first place, a curator ad litem should be appointed, and, secondly, if it can be shown that in consequence of the failure of the Sheriff to make such an appointment the minor has suffered prejudice, I think the proceedings may be opened up in order that this prejudice may be remedied if possible. I shall only add this further observation, that while it is the general rule that a minor should have a curator ad litem, that is not, in my opinion, an absolute rule. For instance, if a minor near majority has been acting as a trader on his own behalf without a curator, I should doubt whether it would be necessary to appoint a curator ad litem to him in any litigation arising out of the business in which he was engaged.

The Court appointed the minor's reputed father to be his curator ad litem.

Counsel:

Counsel for Appellant— Nevay. Agent— Robert Broatch, Law Agent.

Counsel for Respondent— Mair. Agent— Charles B. Hogg, Solicitor.
1880