Moodie v Dempster
| Jurisdiction | Scotland |
| Judgment Date | 18 March 1931 |
| Docket Number | No. 60. |
| Date | 18 March 1931 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Sheriff of Perth.
ProcessCapacityInsane personMinorMinor becoming insane pendente liteCompetency of his curator ad litem continuing to act.
A pursuer in minority, to whom a curator ad litem had been appointed, became insane pendente lite.
Held that, as the pursuer on becoming insane ceased to have anypersona standi in judicio, procedure taken by the curator after incapacity had supervened was incompetent.
Authorities discussed on the proper course to be followed where a party becomes insane pendente lite
On 5th June 1928 Agnes Moodie brought an action of affiliation and aliment against George Dempster in the Sheriff Court at Perth. On 25th October 1928 Andrew Cairns Miller, solicitor, Perth, was appointed her curator ad litem, she being in minority and having no curator.
On 1st July 1929, after a proof, the Sheriff-substitute (Valentine) assoilzied the defender. On appeal the Sheriff (Sandeman), on 20th February 1930, adhered.
An appeal was thereafter taken to the Court of Session, and, on the case appearing in the Single Bills of the First Division on 12th March 1930, the Court sisted the process to enable the pursuer to apply for the benefit of the poor's roll. The pursuer having been admitted to the benefit of the poor's roll on 26th November 1930, a note was thereafter presented to the Court for recall of the sist and for an order allowing the record to be received in typewritten form.
On the note appearing in the Single Bills of the First Division on 3rd February 1931, counsel for the appellant moved that the prayer of the note should be granted, and further moved for the reappointment ascurator ad litem of the original curator. Counsel for the respondent opposed the motion, on the ground that the appeal was incompetent. It appeared that the pursuer had become insane on 22nd November 1928, while the case was still depending before the Sheriff-substitute.
At advising on 5th March 1931,
Lord President (Clyde).This is an appeal against judgments of the Sheriff-substitute and Sheriff-principal in favour of the defender. When the action was brought into Court, namely on 5th June 1928, the pursuer was a minor, and a curator ad litem was appointed to her. On 22nd November 1928little more than five months after the raising of the actionthe pursuer was certified insane, and has been in confinement as a lunatic ever since. The misfortune which has overtaken the pursuer was apparently not brought to the knowledge of the Sheriff-substitute, who subsequently pronounced judgment...
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...the case was in the Inner House. 3 Reid v. DuffUNK, (1839) 1 D. 400; Maclaren on Court of Session Practice, p. 164; Moodie v. DempsterSC, 1931 S. C. 553, Lord President Clyde at pp. 554, 555. Lord Mackay also referred to Shand's Court of Session Practice, (1848), vol. i. p. 4 Act 1585, cap.......