106-NLR-NLR-V-03-MANUEL-VEDARALA-v.-ANA-HAMY-et-al.pdf
1898.
February 1.
MANUEL VEDARALA v. ANA H.AMY et al.
C. R., Colombo, 6,986.
Action against husband and wife—Opposing interests—Right of wife to
give proxy to proctor independently of her husband.
When a husband and wife have opposing interests as defendantsin an action, the wife has a right to defend the action, and for thatpurpose to give a proxy to a proctor independently of her husbandto appear for her.
HE plaintiff, being the son of the second defendant by his
deceased wife, sued his father, the second defendant, andhis stepmother, the first defendant, for the recovery of a sum ofRs. 50 said to have been lent to the two defendants. The seconddefendant admitted the plaintiff’s claim, but the first defendant
( 241 )
retained a proctor to file her answer denying the loan. Theplaintiff’s proctor urged that the first defendant could not signthe proxy produced by her proctor without her husband joiningin it, upon which the Commissioner gave second defendant timetill the following day to decide whether he will join in the proxyor not, and in the meanwhile took his signature to a writingadmitting plaintiff’s claim. On the following day the seconddefendant having failed to sign the proxy, the Commissionerrejected the proxy on the ground that first defendant could notdefend the action without her husband, second defendant, joiningin it.
The first defendant appealed.
H. J. C. Pereira, for the appellant.
Walter Pereira, for respondent.
1st February, 1898. Lawrie, J.—
Set aside, and the action is remitted with instructions to receivethe proxy tendered for the first defendant, and to allow her tofile answer and to prooeed according to law.
The plaintiff brought action against a woman and her husbandfor repayment of a loan alleged to have been made to both.
The husband (second defendant) admitted the loan. The wife(the first defendant) denied she borrowed the money. She hasan interest in denying personal liability and in avoiding a decreeagainst her, because she has a separate estate.
The Commissioner refused to accept a proxy signed by the wifealone, requiring it to be signed by the husband also.
It is unreasonable to expect the husband to sign a proxy todefend an action in which he has already confessed judgment.
The wife and the husband have opposing interests. Shecertainly has a right to defend the action, and for that purposeshe has a right to give a proxy to a proctor to appear for her.
The appellant is entitled to the costs of this appeal.
1898.
February /.
Von. ID.
12(56)29