George Gordon Falconer, and His Factor loco tutoris, v. Katharine Thomson
Date: 17 February 1792 Case No. No. 308.
Factor loco tutoris may enter into a submission.
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Katharine Thomson had acted for many years as housekeeper for the deceased Mr. Falconer of Phesdo. She also uplifted his rents as his factor, and superintended the cultivation of a farm belonging to him.
After Mr. Falconer's death, the nearest relation of his heir refusing to be tutor, a factor loco tutoris was named, between whom and Mrs. Thomson a settlement of accounts took place. But some of the articles being doubtful, amounting in value to about £.300, a reference was made to two men, with a power to name an oversman. And the arbiters having differed, the oversman gave an award, finding a certain sum due to Mrs. Thomson.
Another person having been afterwards named factor loco tutoris, he brought an action for setting aside the reference and award, as unauthorised by the situation of the parties. The pursuers
Pleaded: A reference to arbiters is not an act of administration, but the exercise of a right of property, which is only competent to the owner, or those to whom the owner has specially entrusted it.
The nomination of a judicial factor is a remedium extraordinarium, to be applied for preventing wrong, which would be otherwise unavoidable, and not for performing acts which may be done or omitted without essential loss; and least of all, such as may be attended with irreparable injury.
A tutor being appointed to supply the defect of will in the person, as well as to manage the affairs of the pupil, has very extensive powers; but even he cannot enter into a reference respecting a real estate; and a curator has no such power. A factor loco tutoris, who is only named to prevent dilapidation, until the tutor-at-law can conveniently undertake the office, neither has nor ought to have such authority. As he cannot directly make any settlement, which may not be controlled by the pupil, he cannot indirectly do so, by the nomination of an arbiter.
In practice, a factor loco tutoris has not been allowed to submit to arbiters; although, where the award was favourable to the pupil, it has been found, that the other party was barred from objecting to it; 15th June, 1758, Brown, No. 289. p. 16359; 8th July, 1778, Creditors of Macdowal, No. 11. p. 4058.
Answered: A tutor, both by the Scots and civil law, may enter into a reference, at least respecting moveable effects. It is essentially necessary for the interest of the pupil, that his guardian should have such a power. It often happens, that the matter in dispute cannot be ascertained in a judicial way without much loss. Such is a settlement of accounts. If, by allowing a decree to become final, the tutor might irrevocably bind his ward, why may he not, in the form of a submission, do the same thing?
A factor loco tutoris is now named, altogether to supply the nomination of a tutor by the father, or the assistance of the nearest relation on the father's side, who does not chuse, or is unable to act as tutor-at-law. Whatever powers, therefore, are usually and necessarily entrusted to the one, ought to be given to the other. Without this, the remedy would be incomplete. The decision in the case of Brown is in favour of this argument, for the reference must be binding on both parties, or on neither. In the other case, the question was as to the powers of the factor on a sequestrated estate, which were admitted to be quite different from those intrusted to a factor loco tutoris. The circumstances attending that case too were very peculiar.
The Court in general thought, that a factor loco tutoris might enter into a reference; although, it was observed, that if the question was not the proper subject of such an agreement, or if an improper person had been chosen arbiter, the pupil might be restored ex capite læsionis.
The Lords found, that a factor loco tutoris might enter into a reference, and therefore in this case assoilzied.
Reporter, Lord Dreghorn.Act. Dean of Faculty.Alt. M. Ross.Clerk, Menzies.
Fac. Coll. No. 208. p. 437.
