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M'Conochie v Binnie

Judgment Cited in Precedent Map Related
Vincent
JurisdictionScotland
Judgment Date02 March 1847
Docket NumberNo. 110
Date02 March 1847
Year1847
CourtCourt of Session (Inner House - First Division)
1ST DIVISION.

Lord Wood. W.

No. 110
M'Conochie
and
Binnie

Parent and Child—Minor—Process—Curator ad Litem.—

ELIZABETH M'CONOCHIE, a girl of the age of sixteen and a half years, raised an action of declarator of marriage, adherence, and aliment, against William Binnie. A preliminary defence was stated to this action, that it could not proceed without the pursuer's father being sisted as her curator—at least as curator ad litem. The pursuer's counsel, accordingly, signed a minute, sisting the father; and the Lord Ordinary pronounced an interlocutor, holding him as sisted. Thereafter a minute was lodged, to the effect that the father did not approve of his own nomination, and wished that some other party should be appointed, especially as it was not improbable he might be called as a witness; and Alexander Porteous being willing to act as curator ad litem, the Lord Ordinary was moved to allow the father's name to be withdrawn as administrator-in-law, and to appoint Alexander Porteous to be curator ad litem.

The Lord Ordinary, in respect of the minute, allowed the father to withdraw from the office of curator, reserving all objections to his admissibility as a witness. Thereafter Porteous was sworn in as curator ad litem.

The defender reclaimed, and pleaded;—That the father alone could be curator; and that he could not be allowed to withdraw.

Where a father will not concur, as administrator-in-law, with a minor child who is the pursuer of an action, the Court will appoint some third person curator ad litem.

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