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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Yule v. Yule [1881] ScotLR 19_140 (29 November 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0140.html Cite as: [1881] ScotLR 19_140, [1881] SLR 19_140 |
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Page: 140↓
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In a wife's petition for the appointment of a curator bonis to her husband, who was alleged to be insane and was in a lunatic asylum, and the husband lodged answers denying that he
Page: 141↓
was insane or incapable of managing his affairs — held by Lord M'Laren, Ordinary, that the question of the respondent's capacity might be determined in a proof before the Lord Ordinary. The respondent having reclaimed, on the ground that when the insanity was denied a cognition was necessary, the Court, without deciding the point, and of consent of the respondent appointed ad interim curator a person in whom the respondent had confidence, and whom he had previously appointed his factor and commissioner during the respondent's detention in the asylum.
Mrs Barbara Logan or Yule presented a petition for the appointment of a curator bonis to her husband George Yule. The petition was in common form, and accompanied by the certificates of two medical men to the effect that Mr Yule was at the time incapable of managing his affairs or giving directions for their management. The petitioner suggested a person to be curator bonis. Mr Yule, who at the time the petition was presented was in an asylum, lodged answers denying that he was incapable of managing his affairs or giving directions for their management. On the contrary, he alleged that he was quite able to do so, and that during his absence from Arbroath, where he had resided, his affairs were managed by Mr W. K. Macdonald, town-clerk of Arbroath, who held a factory and commission from him.
The Lord Ordinary allowed the parties a proof of their averments in the petition and answers.
The respondent reclaimed, and argued—Such a proof as the Lord Ordinary had allowed was unknown in practice. The respondent, ere the management of his affairs could be taken from him, was entitled to have the question of his sanity tried in a cognition— Lockhart v. Ross, July 17, 1857, 19 D. 1075. The petitioner might raise that process, which was not, as some thought, only competent to the nearest male agnate, but was competent to all relatives— Bryce v. Graham, Jan. 25, 1828, 6 S. 425, and authorities there cited; Larkin v. M. Grady, December 8, 1874, 2 R. 170, where a cousin, who was not the nearest male agnate, was found entitled to raise that process. See also Downs, Petitioner, reported in Shand's Practice, ii. 1008; and Forsyth, July 19, 1862, 24 D. 1435.
Argued for petitioner—The only questions were—(1) Whether there was a prima facie case for the appointment craved? and the medical certificates answered that question. (2) Whether the procedure the Lord Ordinary had adopted was competent? Bryce v. Graham, supra, was in the petitioner's favour on that matter; Nicolson's Ersk. i. 7, 48; Macfarlane, July 20, 1847, 10 D. 38, where there was a proof by remit to the Sheriff-Substitute in an opposed petition like the present.
The Lords, after hearing counsel, continued the cause for a week, that parties might consider whether Mr W. K. Macdonald, who, as above stated, held an unrecalled factory and commission for Mr Yule, might not be appointed curator bonis of consent of parties, and on the case being called on, it was intimated by the respondent's counsel that that course had been agreed on.
The Lords pronounced this interlocutor:—
“Recall the” Lord Ordinary's “interlocutor: Of consent appoint Mr W. K. Macdonald, town-clerk of Arbroath, to be curator bonis to the said George Yule, with the usual powers, he always finding caution before extract, and his said appointment to last only so long as the said George Yule is an inmate of a lunatic asylum, and decern.”
Counsel for Petitioner— Guthrie Smith— Orr. Agents— Rhind, Lindsay, & Wallace, W.S.
Counsel for Respondent— Solicitor-General (Asher)— Keir. Agents— Lindsay, Howe, Tytler, & Co., W.S.
