Scottish Court of Session Decisions

In October 1906 Annie Gallacher raised an action in the Sheriff Court at Linlithgow against James Connerton, concluding for aliment for an illegitimate child to which she gave birth in April 1906 and of which she alleged the defender was the father. In December 1906 the Sheriff-Substitute ( Macleod) granted decree. The defender appealed to the Sheriff ( Maconochie), who assoilzied. The pursuer appealed, and in April 1907 the case was sisted to enable her to apply for admission to the poor's roll, which application was granted. In June 1908 the pursuer married John Gaffney.

In March 1909, when, the sist having been recalled in July 1908, the case appeared in the roll, the defender lodged a note narrating the marriage and craving an order for intimation to the pursuer's husband that he might sist himself as consenting and concurring, or failing his doing so, dismissal of the appeal. Intimation

Page: 710↓

was made to the pursuer's husband with whom she was living at the time and he declined to sist himself.

The defender thereafter in the Single Bills moved the Court to dismiss the appeal on the ground that a married woman could not sue in her own name—Fraser, Husband and Wife, 2nd ed. i, p. 566. The pursuer opposed the motion, and argued that a wife was entitled to sue an action in which her husband had no interest, without his consent, and alternatively that any defect in the pursuer's title could be cured by the appointment of a curator ad litem— Burns, &c. v. Blair, December 17, 1829, 8 S. 264; Fraser, op. cit. i, p. 568–9; Ersk. Inst., i. 6, 21.

The defender opposed the motion for the appointment of a curator, and argued that where the husband, the wife's natural guardian and curator, was as here living with her, and refused to concur, the Court would not appoint a curator ad litem, though that course was no doubt competent where the spouses were living apart.