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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macpherson, Petitioner [1867] ScotLR 5_132 (21 December 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0132.html
Cite as: [1867] ScotLR 5_132, [1867] SLR 5_132
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SCOTTISH_SLR_Court_of_Session
Page: 132↓
Court of Session Inner House First Division.
Facts:
A petition for removal of a factor loco tutoris was presented. An agreement was then entered into by the parties, the factor to resign, and agree to new factor being appointed, on withdrawal of the charges made against him in the petition; both parties to get expenses out of the estate. The Court held that the expense of the petition itself would form a good charge against the estate, but refused to give expenses to either party out of the estate.
This was a petition for removal of a factor loco tutoris, and appointment of a new factor. The petition was presented by the only surviving next-of-kin of the pupil, and the ground upon which the petitioner craved removal was, that the factor, with whom the boy had resided for some time, had totally neglected the boy's education and health, and was not a fit person to hold the office of factor loco tutoris.
Answers were lodged for the factor, denying the charges made against him, but stating his willingness that the boy should be sent to reside with some respectable third party.
The Court, after hearing counsel, remitted to the Sheriff to take a proof, but, before the proof was taken, the matter was settled on the footing of the petitioner withdrawing the charges made against the respondent in the petition, the respondent resigning his office, and agreeing to the appointment of a new factor loco tutoris; both parties to get their expenses out of the pupil's estate.
Both parties now claimed expenses out of the estate.
Page: 133↓
Mackintosh for petitioner.
M'Lennan for respondent.
Lord President—This petition is, so far, for the benefit of the pupil's estate, for it not only prays for removal of this factor, but for a new appointment. Supposing this factor had resigned voluntarily, a petition would have been necessary for appointing a new factor. The expense of the petition itself, therefore, will form a proper charge in the accounts of the new factor, and, so far, we do not require to find it. But I am against giving expenses to the parties, and I am not disposed to throw out of view that these two parties made it matter of bargain that they were both to get their expenses out of the estate.
Solicitors: Agent for Petitioner— Robert Hill, W.S.
Agent for Respondent— Colin Mackenzie, W.S.