Scottish Court of Session Decisions

Mrs Susan Armstrong or M'Quillan, residing in Lennox Close, Portpatrick, brought an action of affiliation in the Sheriff Court at Stranraer against James Smith, fisherman, Blair Street, Portpatrick, for aliment for an illegitimate child born on 19th December 1890, of which she averred that the defender was the father.

It was stated in the condescendence that her husband “Joseph M'Quillan, a seaman, sailed for Australia seven years ago, and has not since been heard of by the pursuer, and she has no knowledge as to whether he is dead or alive.”

The defender pleaded—“(1) The pursuer being a married woman is not entitled to sue this action without the consent and concurrence of her husband. (2) The child in question being the offspring of a married woman, her husband is presumably the father thereof; therefore it is incompetent to prove the paternity against the defender without making the husband a party to the action.”

Upon 28th May 1891 the Sheriff-Substitute ( Watson), before answer, allowed the pursuer a proof of her averments.

“ Note.—The pursuer of this action of filiation is a married woman. She avers that her husband sailed for Australia about seven years ago, and has not since been seen or heard of by her. The defender does not admit the truth of that averment, but pleads that the pursuer has no title to sue unless she either brings positive proof of the death of her husband or obtains his consent to and concurrence in her action. The defender's contention was founded mainly on certain dicta of Lord Justice-Clerk Moncreiff and Lord Young in the case of Wilkinson, November 9, 1880, 8 R. 72. These dicta, however, were uttered prior to the passing of the Married Women's Property Act 1881, and even under the former law they seem hardly reconcilable with some earlier decisions of the Court, such as Jobson, May 31, 1832, 10 S. 594. In that case a wife whose husband had been abroad for several years was found entitled to sue for aliment the alleged father of a child begot before but born after the marriage. It is true that in that case a curator ad litem was appointed to the wife, and the husband was also called in the summons for his interest. But it appears to the Sheriff-Substitute that the reasons which made these precautions necessary under the former law do not now exist, for the husband has now no right of administration in reference to such a claim as the present. The Sheriff-Substitute is therefore of opinion that if the pursuer's averment in regard to her husband is true, she has a good title to sue. He has accordingly allowed a proof before answer.”

The defender appealed to the Sheriff ( Vary Campbell), who upon 19th June 1891 refused the appeal.

“ Note.—Assuming that the pursuer can prove that her husband has been absent from her for seven years without contributing to her support, and that it is now uncertain whether he is living or dead; further, that if he is alive, she does not know where he is to be found—I cannot refuse to sustain her title to sue. If the husband is dead, there can be no question of her right. If he turns out to be alive, nevertheless I think there is authority for sustaining an action of this nature by a married woman. The class of cases to which I refer are those relating to the actions and obligations competent to and against a married woman thrown upon her own resources either by wilful desertion of her husband or by his permanent separation from her without keeping up a home for her or making any provision for her support.

A woman in such a situation must have some legal capacity to act and contract, to sue her debtors and be sued, else she must starve. Such capacity has accordingly

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been recognised in the well-known cases of Chirnside, M. 6802; Orme, 12 Sh. 149; Ritchie, 7 D. 819. The pursuer, in her present position as alleged, might, if she had been slandered, have sued for damages without her husband's concurrence, and the same would hold if she had a claim of reparation for personal injuries sustained by her in a railway collision.

This is not an action of status either to dissolve the marriage for adultery or to declare the child to be or not to be the husband's lawful child. To such actions the husband is a necessary party. No doubt the defender will have the benefit for his defence of the presumption arising from the pursuer's marriage, but this presumption will be overcome if the pursuer can prove her averments— Montgomery, 8 R. 403; Steedman, 14 R. 1066; Stephen's Digest of the Law of Evidence as to Affiliation Orders, art. 98. This is an action which might have been brought by anyone who was maintaining the child in order to enforce payment by the defender of his share— Thomson v. Westwood, 4 D. 833. Brought as it is by the mother, it has no further effect than this in her favour, and it may serve, probably enough, by enforcing the defender's contribution to prevent her from having to apply to the parish. Questions of status may have to be dealt with incidentally in this, as in many similar cases, in order to reach the practical judgment sought from the Sheriff— M'Donald, February 18, 1891, 28 S.L.R. 404, but the husband and child will not be barred afterwards from raising any action as to status by this woman seeking decree against the present defender, or by her registering the child as a bastard— Tennant, 17 R. 1205. Justice to the woman, to whom the burden of this child may make all the difference between parochial chargeability and self-maintenance, and the regular administration of the Poor Law Act (sec. 80), seem to render it right and proper, according to the authorities referred to by the Sheriff-Substitute and by me, not to sustain the defender's first and second pleas to the effect of excluding the action. These pleas cannot, on the other hand, be repelled until she proves her deserted position as alleged by her. The authorities of the common law above mentioned have been extended by the letter and spirit of recent legislation in 1861, 1874, 1877, and 1881 as to married women. If the child is being supported, as I suppose is the case, out of the pursuer's wages and earnings, then such wages are by the Act of 1877 her own, exclusive of both jus mariti and right of administration, and this is truly an action relative to and for the protection of such separate estate from a burden which the defender as alleged ought to share. An action relative to such estate a married woman might raise at common law without concurrence of her husband. It does not appear that she when of full age needs a curator ad litem in an action such as this. At all events, there are authorities—Fraser on Husband and Wife, pp. 569, 570, 572, 1516—dealing with actions by married women whose husbands are abroad or in reference to their separate estate, which do not seem to render it pars judicis to add to the expense of this action by requiring the appointment of a curator to the action. If either party moves for the appointment of such a curator (and it may be advisable for the pursuer to save any technical question by so doing), the Sheriff-Substitute will probably grant the motion and allow the curator to see the process in common form before proceeding with the proof.”

After a proof the Sheriff-Substitute found in fact that the pursuer's husband had left this country and sailed for Australia in 1883, that she had not heard of him since 1885, and that she had made reasonable endeavours to trace him, but without effect; and found in law that in these circumstances pursuer was entitled to sue this action alone, and repelled the first and second pleas-in-law stated by the defender. Upon the merits the Sheriff-Substitute found that the pursuer had established her case, and gave her decree accordingly.

The defender appealed to the Second Division of the Court of Session, and argued—The defender's preliminary pleas should be sustained. In finding that the pursuer had a title to sue alone the Sheriffs had disregarded the case of Wilkinson v. Bain, November 9, 1880, 8 R. 72. In any case a curator ad litem should have been appointed to the pursuer— Cullen, November 19, 1830, 9 S. 31; Jobson, May 31, 1832, 10 S. 596.

Argued for the respondent—The judgment should be affirmed. The case had been correctly set forth by the Sheriffs.

At advising—