Scottish Court of Session Decisions

This was an action for separation and aliment on the ground of adultery and cruelty at the instance of “Mrs Mary livingstone M'Callum or thomson, presently residing at the Royal Lunatic Asylum, Gartnavel, near Glasgow, wife of James Thomson, clothier and outfitter in Glasgow, with consent and concurrence of Duncan M'Callum, wright and builder in Glasgow, her father, and the said Duncan M'Cullum, for any interest he has in the premises,”against the said James Thomson.

The defender denied the adultery and cruelty, and pleaded, inter alia—“(1) no title to sue. (2) the pursuer Mrs Thomson being insane, and therefore incapable of giving authority to raise this action, and the pursuer Duncan M'Callum having no interest or title to pursue it, the action is incompetent, and should be dismissed.”

On 25th January 1887 the Lord Ordinary ( M'laren) repelled the above pleas and allowed a proof.

“ Opinion.—This case was argued on the question of title to sue. It is an action of separation and aliment instituted in the name of a lady whose state of mind has rendered necessary her confinement in an asylum, and it is instituted with the concurrence of her father as next-of-kin or nearest agnate. A curator ad litem was appointed in the course of making up a record, and he also insists in the action. There does not appear to be any precedent in the reported decisions of this Court for an action of separation instituted under such circumstances, and my first impressions were adverse to the claim of a father or guardian to sue for a separation in name of the daughter or ward.

“The arguments against the title are obvious. The action is in its nature strictly personal, and it is easy to see the objections to the prosecution of a claim in the name of an insane wife which she herself, had she been capable of giving instructions to a lawyer, might have declined to raise, and which, in the event of her recovery, she might disapprove.

“But there are also reasons of expediency in favour of the action. An insane wife might be condemned by fate to suffer every kind of cruelty and indignity at the hands of her husband if the right were denied to her of suing for separation in the only way in which she can prosecute legal measures—that is, through the intervention of her nearest relative or guardian.

“Having regard to the current of English authority, and particularly to the case of Woodgate, 30 L.J., Prob. and Mat. 197, I have come to be of opinion that the action is maintainable.

“The case of Woodgate underwent very careful consideration. The committee of the lunatic wife applied in the first instance to the Lords

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Justices in Chancery for authority to promote the suit, and after a reference to the Master the desired authority was given. After a trial the judge, Sir Cresswell Creswell, granted decree of judicial separation.

“The practice of the English Courts in this matter rests on their common law jurisdiction, and is not derived directly from the statutes under which the present Court for Probate and Matrimonial Causes is constituted.

“There being no settled principle of the law of Scotland which would debar a lunatic wife from the exercise of such rights against her husband as may be claimed by married women under the circumstances set forth in this record, I am of opinion that the authority which is justly due to the decisions of a co-ordinate Court may be allowed to determine the question in favour of the competency of the action.”

The defender reclaimed, and argued—The present case was ruled by Reid v. Reid, January 19, 1839, 1 D. 400. Woodgate, cited by the Lord Ordinary, and the other English cases on which the pursuers founded, did not apply. In England, before proceedings could be begun, there was a thorough investigation into the alleged lunatic's state of mind and affairs by way of petition to the Lord Chancellor, in the course of which an examination is held before a Master in Lunacy—Pope's Law and Practice of Lunacy, p. 51. Cognition was the analogous proceeding in Scotland. A married woman might be cognosced—Fraser's Parent and Child, p. 534—and after cognition the tutor-dative took the place of the lunatic. That course ought to have been followed here. Neither a curator bonis nor a curator ad litem had anything to do with the ward's person. Mordaunt v. Mordaunt, June 22, 1874, L.R., 2 Scot. & Div. App. 375, and the subsequent case of Baker v. Baker, April 6, 1880, L.R., Prob.&Div. 142, proceeded solely on the terms of the English Divorce Act.

Argued for the pursuers—This question admittedly came to be a mere question of procedure, for it was not disputed that had the wife been cognosced her tutor might have sued. But such circuity of action was to be avoided, especially here, where separation merely, not divorce, was what was asked for. A pupil could raise an action in his own name, and get a tutor ad litem appointed, and so might a wife—as she had done here— Swan or Briggs, January 29, 1853, 2 S. 184. The instance therefore was good, and the real purpose of the action was to get a suitable award of aliment for her. In England the committee of a lunatic wife might sue an action of divorce on her behalf— Mordaunt ( supra)—or defend one— Baker ( supra)—or sue an action of separation for her— Parnell v. Parnell, January 2, 1814, 2 Hag. Cons. Cas. 169; Woodgate ( supra)—also a suit for nullity of her marriage— Hancock v. Peaty, March 19, 1867, 1 Prob. & Div. 335. These authorities ought to be followed in Scotland. It had also been held in England that the ex facie valid appointment of a guardian was not to be questioned in such suits— Barham v. Barham, June 13, 1789, 1 Hagg. 5.

After the hearing the Court gave the parties an opportunity of considering as to the amount of the aliment to be allowed to Mrs Thomson, but they failed to effect a settlement.

At advising—