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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackay v. Allan and Others [1867] ScotLR 5_272 (19 February 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0272.html Cite as: [1867] ScotLR 5_272, [1867] SLR 5_272 |
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Page: 272↓
(Before
Held (per Lord Mure) that a wife is entitled to sue in her own name in regard to a subject from which there is an exclusion of the jus mariti, and that, if she is resident in Scotland, she is not bound, in the absence of her husband, to sist a mandatory.
In this action Mrs Mackay, suing with the concurrence of her husband, Captain Mackay, sues the judicial factor on her father's trust-estate for £1500, as arrears of an annuity provided to her by. his trust-deed, and expressly excluded from the jus mariti of her husband. When the action was raised, Captain and Mrs Mackay were resident in London, and a motion was then made by the defenders that Mrs Mackay should be made to sist a mandatory. She answered this by coming herself to stay in Edinburgh, but after a short residence here she returned to London. The defenders thereupon renewed the motion, and contended that it could not be satisfied merely by Mrs Mackay's residence here, because, even admitting, as maintained by Mrs Mackay, that the exclusion of the jus mariti gave her a good title to sue in her own name, and thereby the concurrence of her husband was rendered unnecessary, that did not relieve her of the duty of providing some one who might be liable for the expenses of process, if she were unsuccessful, for she herself would not be personally liable. The Lord Ordinary refused the motion, but ordered the appointment of a curator ad litem. His Lordship added the following note:—“The Lord Ordinary understands it to have been settled by the decision in the case of Graham, March 4, 1821, that when, as here, a wife sues for recovery of a fund from which the jus mariti of her husband is excluded, she is in titulo to do in her own name and for her own interest. It seems also to have been settled, in the case of Gale, March 7, 1857, that when a wife has an interest to sue separate and distinct from her husband, and sues with his concurrence as her administrator, it is not necessary that a mandatory should be sisted for the husband. In the peculiar circumstances of this case the Lord Ordinary sees no reason for applying a different rule; but, having regard to the state of the husband's health, it may be proper that a curator ad litem should be appointed to the pursuer, as was done in the case of Gale.”
Counsel for pursuer— Mr Keir. Agents— H. & A. Inglis, W.S.
Counsel for other defenders— Mr Shand. Agent, A. Morrison, S.S.C.
Counsel for judicial factor— Mr W. A. Brown. Agent— James C. Baxter, S.S.C,
