Scottish Court of Session Decisions

The Lord Ordinary informs us in his report that when the case appeared in the rocedure roll Mrs Nakeski-Cumming's husband appeared and maintained that he was entitled to be heard in support of his wife's claim. The question is whether he is so entitled especially in view of the provisions of the recent Married Women's Property (Scotland) Act 1920.

The right of audience in the Court of Session is part of the original constitution of that Court, and is expressly defined in the legislation of 1532 [Scots Acts (duodec. ed.) i, pp. 217–227, where the legislation is attributed to the year 1537, the chapters being 36–38 inclusive; see also the final Parliamentary ratification, at p. 242], which established the College of Justice. Chapter 51 [Scots Acts (duodec. ed.) i, p. 221] of the said constitution of the Court of Session, which so far as the present question is concerned has never been altered or departed from in practice, is in the following terms:—“That na man enter to pley bot parties conteined in their summoundes and their procuratoures gif they will ony have.” The procurators in question were the advocates, whose office was instituted by chapters 64, 65, and 66 [Scots Acts (duodec. ed.) i, p. 224], and whose admission and duties are still regulated accordingly. The right of audience before this Court is thus equally shared by the parties litigant before it and by duly admitted advocates who appear on their behalf, but it belongs to no one else. Pleadings in cases called before this Court are accordingly presented to it either per party or per procuratorship of counsel and in no other way.

Until the recent Married Women's Property Act of 1920 the husband of a married woman was a proper and competent, usually a necessary, party to any litigation in which her estate was concerned or as the result of which her estate might be affected, whether such estate was heritable or moveable. (I omit any reference to the older state of matters when the jus mariti was operative.) The reason of course was (first) that the husband was the legal administrator of his wife's estate; and (second) that even though his legal administration had been excluded (for example, by antenuptial marriage contract) he was none the less her legal curator. The husband was therefore regularly made a party to an action such as this multiplepoinding in the double capacity of curator and administrator-in-law of his wife, or at any rate in the capacity of curator.

The Lord Ordinary points out that under section 1 of the Married Women's Property (Scotland) Act of 1920 the husband's administratorship-at-law is wholly abolished. But it is necessary to add that by section 2 the powers and duties of the husband as curator of his wife are also removed except and unless in the case in which the wife is a minor. It is not suggested that the present case falls within the exception. The action before us was therefore properly presented to the Court without calling the husband as a defender in any capacity, and indeed without any reference to the husband except in so far as Mrs Nakeski-Cumming is designed as his wife and living with him. The husband is not in any sense a party “contained in the summons.” He is not even, as the law now stands, a competent party to the action at all. That is, no doubt, why in the written pleadings before the Court (comprised in the closed record) Mrs Nakeski-Cumming herself signs her claim per party. The common law of Scotland was jealous to preserve to married women the protection to to which the marriage status entitled them in defending their property and interests, and if the husband was absent or incapacitated the practice was to appoint a curator ad litem in his place. But the modern order of ideas, of which the Act of 1920 is an expression, supersedes all this, and the married woman (being major) is in the same position as an unmarried woman (who had attained majority) always was. It would be difficult to draw a line between the right to plead in writing and the right to plead orally. It would have been incompetent for the husband to sign his wife's claim. He could not do so per party, for he is not a party, and he could not do so as administrator or as curator, for he is no longer such. How then can he be entitled to plead his wife's case orally any more than a father, son, brother, or other relative or friend? I think it is impossible to give the husband right of audience in the present case.

Lord Skerrington—I concur.

Lord Cullen—I also concur.

Lord Sands—I do not differ, but I acquiesce with some reluctance. It appears to me that under the constraint of recent legislation we are drifting away from a conception of the marriage tie which rests upon a plane higher than that of any rules of jus administrationis or curatory.