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SCOTS LAW TIMES
PUBLISHED BY W. GREEN & SON, LIMITED, AT THE OFFICE
2 AND 4 ST GILES STREET
JUDGES OF THE COURT OF SESSION DURING THE PERIOD OF THE REPORTS IN THIS VOLUME.
NOV 2 8 1940
LORD PRESIDent—The RiGHT HON. LORD STRATHCLYDE.
THE HON. LORD MACKENZIE, THE HON. LORD SKERRINGTON,
LORD JUSTICE-CLERK-THE RIGHT HON. LORD SCOTT DICKSON.
* AND THE HON. LORD GUTHRIE.
THE HON. LORD ORMIDALE (GEORGE L. MACFARLANE).
THE HON. LORD ANDERSON (ANDREW MACBETH ANDERSON).
* The Hon. Lord Guthrie died on 28th April 1920.
1920, 1 SCOTS LAW TIMES
W. S. DICKSON, Esq., M.A.; W. R. GARSON, Esq.; MARCUS DODS, Esq., B.A.;
A. N. SKELTON, Esq., B.A.; MAURICE J. KING, Esq., M.A., LL.B.;
J. R. WARDLAW BURNET, Esq., B.A., LL.B.; J. A. LILLIE, Esq., M.A., LL.B.; WILLIAM GARRETT, Esq., B.A., LL.B.; AND J. R. GIBB, Esq.,
NOTE.-Cases in this volume may be cited 1920, I S.L.T.
Ward v. Walker, 1920, 1 S.L.T. 2.
deceased Euphemia Ward, and that Peter Ward, junior, was her illegitimate son.
After various adjournments at the instance of the
Walker: (The Lord President, Lords Mackenzie, Skerrington, pursuer, proceedings were sisted on his motion on
26th November 1919.
Ward v. Walker.
I. Process - Title to sue Minor and pupil - Tutor ad litem-Pupil without guardians-Right of pupil without guardians to bring action in his own
name and to have tutor ad litem appointed after the action is in Court-Held that the right was established by immemorial practice-Macdonald's Tr. v. Medhurst (1915 S.C. 879) commented on. II. Workmen's Compensation Act 1906 (6 Edw. VII. cap. 58) -Title to claim in arbitration-Minor and pupilTutor ad litem-Pupil without guardians-Held that there were no specialties in the Workmen's Compensation Act 1906 which excluded the rights at common law of a pupil without guardians, and that the pupil was entitled to make a claim in an arbitration under the Act and thereafter to have a tutor ad litem appointed.
Stated Case under the Workmen's Compensation Act 1906.
In an arbitration under the Workmen's Compensation Act 1906 in the Sheriff Court of Lanarkshire at Hamilton between Peter Ward, junior, Blantyre, and Gideon Walker, Blantyre Sawdust Mill, the Sheriff-Substitute (Shennan) as arbitrator dismissed the action, and at the request of Peter Ward, junior, stated a case for appeal.
The stated case set forth :
This is an arbitration in a claim for the recovery of compensation in respect of the death of Euphemia Ward from accident alleged to have arisen out of her employment with the respondent. The dependant for whom compensation is claimed is the illegitimate son of the deceased, born on 8th August 1912.
Proceedings were instituted on 22nd August 1918 at the instance of Peter Ward, senior, labourer, 18 Middle Row, Blantyre, who designed himself as tutor and administrator-in-law for his infant grandson, Peter Ward, junior. In his averments Peter Ward, senior, stated that he was the father of the
17th December 1918.
On 2nd May 1919, on the pursuer's motion, the sist was recalled, and on 16th May 1919 he lodged a minute moving the Court to amend the instance so that the action should proceed in the name of Peter Ward, junior, alone. On 22nd May 1919 the agent for Peter Ward, junior, lodged a motion craving the Court to appoint Peter Ward, senior, tutor ad litem to the pupil Peter Ward, junior.
I heard the parties' procurators on 23rd May 1919. On 27th May 1919 I gave judgment. I allowed the instance to be amended as craved by deleting the name of Peter Ward, senior, therefrom, leaving the action to proceed at the instance of Peter Ward, junior. I refused the motion to appoint a tutor ad litem to Peter Ward, junior, as incompetent, and in respect that there was no longer any pursuer in the action I dismissed it.
The Questions of Law for the opinion of the Court were—
"1. Was it competent for me to make the instance valid by appointing a tutor ad litem to the pupil pursuer? "2. Was I right in dismissing the action?"
The arbitrator's note was in the following terms:
Note. This is an action to recover compensation for behoof of the illegitimate son of the deceased Euphemia Ward, who was killed by accident in the defender's premises while she was in their employment. The action was raised originally by Euphemia Ward's father as tutor and administrator-in-law for her child. Recognising that he does not hold that position, he has withdrawn from the case, leaving the action to proceed at the instance of the pupil child, who was born on 8th August 1912. This instance is plainly incompetent, and the motion now made is that I should make the instance valid by appointing a tutor ad litem to the pupil.
As the law at present stands, I am of opinion that it is not competent for me to make the appointment craved. The question was discussed very fully by Lord Johnston in Macdonald's Tr. v. Medhurst (1915 S.C. 879), and a reasoned opinion was delivered against
the competency of appointing a tutor ad litem to a pupil. In my view it is my duty to follow that opinion. It is obvious that there is danger of serious hardship being entailed on this child, if it has a good claim. I know of no method by which a pupil having no tutor can have its rights vindicated at law except by having a factor loco tutoris appointed, and the expense entailed would make a serious inroad on the compensation awarded. Of course the principle relates generally to the vindication of the rights of pupils without tutors, and it is not limited to the enforcement of claims under the Workmen's ComBut that Act definitely recognises pensation Act. the claim of illegitimate children, and I venture to suggest that a method of giving effect to the rights conferred by the Act might be found through Clause 6 of Schedule II., which provides that "Rules of Court may make provision for the appearance in any arbitration under this Act of any party by some other person." It does not seem unreasonable to hold that a pupil may be a "party" in the sense of this clause, although it has no legal persona.
The case was heard before the First Division on 14th, 19th, and 20th November 1919.
Argued for the Pursuer: Whatever the common law might be as to a pupil's persona standi in judicio, nothing could deprive this pupil of his statutory right to claim compensation. The terms of the Workmen's Compensation Act 1906 shewed that claims by persons under legal disabilities were contemplated (First Schedule (5) and (7)). No rules had been made by the Scots Court under par. (6) of the Second Schedule with reference to the matter in question. But it was far too sweeping a statement of the common law to say that a pupil had no legal persona. Pupils could give evidence as witnesses, and they had been found guilty of contributory negligence (Cass v. Edinburgh and District Tram ways Co. Ltd., 1908 S.C. 841) and of crime (Ersk. IV. iv. 6). Up to the point of contract, i.e. of litiscontestation, a pupil had a persona, and the correct and immemorial practice was that a pupil who had no guardians brought an action in his own name and had a tutor ad litem appointed to him after the action was in Court (Ersk. I. vii. 13; Bell's Prins., section 2067; Mackay's Manual, pp. 147 and 148; Sinclair v. Stark, 1828, 6 S. 336; Young, 1828, 7 S. 220; Keith v. Archer, 1836, 15 S. 116; Earl of Craven v. Lord Elibank's Trs., 1854, 16 D. 811; Fraser, Parent and Child, 3rd ed., p. 208; Dove Wilson, Sheriff Court Practice, 4th ed., p. 97; In re Brocklebank, 1877, 6 Ch. D. 358).
Argued for the Defender: There was no specialty about the Workmen's Compensation Act 1906 with regard to a pupil's right to institute proceedings; the practice of the common law must prevail. The word "party" in par. (6) of the Second Schedule to the Act and in C.A.S., L, xiii., 1, meant a party competently before the Court. Further, the Act constituted the remedy of arbitration only with respect to questions "not settled by agreement" (sec
tion 1 (3)). A pupil had no capacity to agree, and 1ST DIV. therefore no capacity to be a party to an arbiand Engineering Co. Ltd. v. Kennedy, 1906, November 26, tration under the Act (Caledon Shipbuilding Walker. 8 F. 960), just as he had no persona standi in a special case in the Court of Session (Macdonald's Tr. v. Medhurst, 1915 S.C. 879, per Lord Johnston). The proper procedure was that a factor loco tutoris should be appointed ante omnia, and that the claim should then be made, or the action brought, in his name as factor for the pupil. The authorities in this matter were not by any means so clear as the contention for the pursuer would imply. In Sinclair v. Stark (6 S. 336) the opinions were obiter dicta, as also was the Lord Ordinary's note in Calderhead's Trs. v. Fyfe (1832, 10 S. 582). In Hamilton (1861, 24 D. 31) the pupil's father was already in the process, and himself made the motion to the House of Lords to sist the pupil as a respondent and remit to the Court to appoint a tutor ad litem. Besides, the point at issue was not debated in that case. The only direct authorities were the cases of Johnston v. Johnston, 1740, M. 16346; Macneil v. Macneils, 1798, M. 16384; Knolls, 1610, M. 8968; and Carrigan v. Cleland, 1907, 15 SL.T. 543. The practice had been crystallised in cases of incapacity other than pupillarity to the effect that the incapax could not himself institute proceedings of any sort (Reid v. Reid, 1839, 1 D. 400 (which cited and condemned the statement of the law in Darling's Court of Session Practice, Vol. I. p. 88); Mackenzie, 1845, 7 D. 283; Anderson's Trs. v. Skinner, 1871, 8 S.L.R. 325; Calver v. Howard, Baker & Co., 1894, 22 R. 1; Swan's Trs. v. Swan, 1912 S.C. 273). In principle there was no distinction in this matter between a pupil and any other incapax. Bogie v. Bogie (1840, 3 D. 309) was an entirely special case. Further, the application for a tutor ad litem was an appeal to the nobile officium of the Court, and it was very doubtful whether the Sheriff had power to make the appointment. The proper and unexceptionable course, therefore, was for a pupil with a claim under the Workmen's Compensation Act to have a factor loco tutoris appointed to him, who could competently prosecute a claim.
Avizandum, 28th November 1919.
On 26th November 1919 the Court found in answer to the first question of law that the Sheriff-Substitute as arbitrator should appoint a tutor ad litem to the pupil, and answered the second question of law in the negative.
The Lord President. This stated case raises a pure question of practice and procedure, and that is so even although it relates to a claim made under the Workmen's Compensation Act.
The illegitimate pupil child of a woman who