Scottish Court of Session Decisions

At advising—

Lord Justice-Clerk—( After expressing concurrence with the Sheriffs on the facts)—There is a preliminary question which was not raised by the defender, but which is of so great importance that I do not know that it is not our duty to give an opinion on it. The pursuer is a married woman, and this is an action for payment of money brought without her husband's consent, and without any evidence that her husband's consent cannot be obtained, and the question is, whether she has any title to sue? Whether she could sue without that concurrence with a tutor-ad-litem is another question; but I am certainly not aware of any case where it has been held that a married woman can sue an action for a money payment without the concurrence of her husband.

I am not sure that there is not another and greater question in the case, and that is, whether the wife has not to discharge the burden of showing that her husband could not have been the father of the child? On that I give no opinion, but I am not satisfied that the pursuer has any title to sue this action, particularly when I consider the terms of her first plea-in-law.

Lord Gifford concurred on the merits of the case, and gave no opinion on the question of competency.

Lord Young—The interesting and important feature of this case is that to which your Lordship in the chair last adverted. My view of the case goes deeper than the mere question of title to sue. The case relates to the child of a married woman, and the child of a married woman is prima facie her husband's. He is entitled to have it, and he is bound to support it. What he may establish in order to relieve himself of his obligation in regard to it it is not hujus loci to consider. He is not here to establish anything at all, or to part with the rights or free himself of the liabilities of a husband. It is a proposition new to me that if a husband desired to have a child delivered over to him which was the offspring of his lawful wife, another man could come forward and say, “No, I have right to it, for I begot it;” or that the mother can hand over the child to another man than her husband and say, “It is yours.” It is not hujus loci to consider what a husband may establish in order to get rid of a wife who has misconducted herself, or of the obligation to support a child of which it is impossible that he should be the father. All we know is, that the child is that of a married woman, and there is no reason to hold that the husband is trying to get rid of the burden of supporting it. So, irrespective of the merits of the case, I am of opinion that the action is not maintainable.