Mackenzie's Trustees v. Mackenzie [1908] ScotLR 785 (17 June 1908)

Mackenzie's Trustees v. Mackenzie [1908] ScotLR 785 (17 June 1908)

A curator ad litem should not be appointed to a minor defender at the instance of the pursuer, whether in a multiplepoinding or other action, as the Court cannot compel a minor to participate in litigation against his will. The procedural status of multiplepoinding does not justify a different approach.

Citation
[1908] ScotLR 785
Parties
Pursuer: Mackenzie's Trustees; Defender: Mackenzie (Allan Keith Mackenzie and Eric Dighton Mackenzie, minors); Curator Ad Litem: John Cowan, Esq., advocate, Edinburgh
Jurisdiction
Scotland
Judgment Date
17 June 1908
Procedural Posture
Multiplepoinding and Exoneration / Interlocutory Application Regarding Appointment of Curator Ad Litem to Minor Defenders
Outcome
Appointment of curator ad litem to minor defender recalled; curator relieved of office.
Legal Topics
Curator Ad Litem, Minor Defenders, Multiplepoinding, Appointment of Curator, Absence of Appearance
Civil Procedure Trusts and Estates Curator Ad Litem Minor Defenders Multiplepoinding Appointment of Curator Absence of Appearance

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Parties

Mackenzie's Trustees

Pursuer

Mackenzie (Allan Keith Mackenzie and Eric Dighton Mackenzie, minors)

Defender

John Cowan, Esq., advocate, Edinburgh

Curator Ad Litem

Procedural Posture

Multiplepoinding and Exoneration / Interlocutory Application Regarding Appointment of Curator Ad Litem to Minor Defenders

Legal Issues

  1. 1 Whether the Court can appoint a curator ad litem to a minor defender on the motion of the pursuer in a multiplepoinding action
  2. 2 Whether the procedural status of multiplepoinding alters the rule regarding appointment of curator ad litem to minor defenders

Ratio Decidendi

A curator ad litem should not be appointed to a minor defender at the instance of the pursuer, whether in a multiplepoinding or other action, as the Court cannot compel a minor to participate in litigation against his will. The procedural status of multiplepoinding does not justify a different approach.

Court Disposition

Appointment of curator ad litem to minor defender recalled; curator relieved of office.

Orders

  • Remit to Lord Ordinary to recall the appointment of the curator ad litem.