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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cunningham v. Smith [1880] ScotLR 17_269 (8 January 1880) URL: http://www.bailii.org/scot/cases/ScotCS/1880/17SLR0269.html Cite as: [1880] SLR 17_269, [1880] ScotLR 17_269 |
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Page: 269↓
[Sheriff of Edinburghshire.
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.
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—
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
Page: 270↓
The Court appointed the minor's reputed father to be his curator ad litem.
Counsel for Appellant— Nevay. Agent— Robert Broatch, Law Agent.
Counsel for Respondent— Mair. Agent— Charles B. Hogg, Solicitor.