Scottish Court of Session Decisions

The application in this petition was for the appointment of a curator bonis to a minor, whose father was alive—the minor being entitled in his own right to certain property in bank shares, which, it was alleged, his father had sold, and the proceeds of which he was said to have misapplied. The father opposed the petition, on the ground that, in virtue of his patria potestas, he was not bound to give an account to his son till he reached majority.

The Lord Ordinary ( Mackenzie) allowed a proof, before answer, of his averments. The respondent asked leave to reclaim against this interlocutor. The Lord Ordinary reported the case, and asked the direction of the Court as to the course to be followed by him in granting or refuse ing leave, on the ground that the provisions of the Court of Session Act, 1868, and particularly the 28th section of it, appeared to clash with the provision in the 6th section of the Distribution of Business Act of 1857, anent reclaiming in petitions such as the present.

The Court announced their opinion that the 6th section of the Act of 1857 applied to the case, and that the Court of Session Act of 1868 did not interfere at all with the provisions of that Act anent reclaiming. They accordingly directed the Lord Ordinary to refuse the respondent leave to reclaim

Leave to reclaim against the Lord Ordinary's interlocutor, ordering a proof, having been thus refused, in accordance with the directions of the Court, the parties agreed to allow the said interlocutor to be recalled, and to take the opinion of the Court upon the case as it stood, and they requested the Lord Ordinary again to report. This he accordingly did.

The circumstances in which the petition was presented were as follows:—The petitioner, who was fourteen years of age, was the son of the respondent Peter M'Nab and his wife the late Sarah Bladworth or M'Nab. The late Richard Blad—worth, who died in 1839, directed his trustees to

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convey to his brother Jonathan Bladworth twenty shares of the National Bank of Scotland, to be held by him in trust for his daughter Sarah Bladworth until she attained the age of fifty years, the annual proceeds being in the meantime paid over to her, excluding the jus mariti of any husband she might have, both from the capital and income. Should she die before attaining the age of fifty years, leaving children, the said shares were to be equally divided among the said children. In 1841 the said shares were conveyed by the trustees to Jonathan Bladworth. He drew the annual dividends, but did not account for them to his daughter until 1854, when, in lieu of payment of these dividends, he transferred to her, secluding the jus mariti, other fourteen shares in the National Bank, and also three shares of the Edinburgh and Leith Gas Company. In 1856 the said Sarah Bladworth was married to the respondent. On 18th April 1857 the petitioner, her only child, was born. And on 5th May 1857 she died, without attaining the age of fifty years, and intestate. Besides the twenty shares of bank stock held in trust for her, the said Jonathan Bladworth, her father, was due her at her death about £40 of accrued dividends. On 24th June 1857 the said Peter M'Nab unnecessarily, as averred by the petitioner, raised an action in the Court of Session against the said Jonathan Bladworth. This action concluded to have it found and declared that the said twenty shares National Bank stock belonged to the petitioner, as the lawful issue of the said Sarah Bladworth, and to have the said Jonathan Bladworth ordained to execute a transfer thereof accordingly. The said Jonathan Bladworth allowed decree in absence to go against him in this action, which decree in absence was pronounced on 13th November 1857. On 30th December 1857 the said Jonathan Bladworth executed a transfer of said twenty shares, proceeding upon the narrative of Richard Bladworth's trust-settlement, and of the decreet in this action. Again, in 1858, the said Peter M'Nab raised an action in the Court of Session against the said Jonathan Bladworth, concluding that the said Jonathan Bladworth should pay to him, as in his own right, the sum of £198, 12s. 8d. sterling, as the amount of accumulated dividends on the said twenty shares National Bank stock, from 13th July 1841 to 20th January 1857, inclusive, and also the sum of £75, 12s. 9d. sterling, as the amount of the periodical interest on the said dividends during the foresaid period, with interest on these sums from the said 20th January 1857 till payment. The said Jonathan Bladworth defended the said action on the ground, inter alia, that, as an individual, and in his own right, Peter M'Nab had no claim in the premises. The action was then abandoned by the said Peter M'Nab. Thereafter, also in 1858, the said Peter M'Nab raised (in the Court of Session) an action in the name of himself, as father and administrator-in-law of the petitioner, against the said Jonathan Bladworth, concluding for payment to him, the said Peter M'Nab, as administrator-in-law of his said son, of the same sums as those which, in his individual name, and as in his own right, he had sued for in the action which has just been alluded to. The said Jonathan Bladworth defended this action also, and stated, inter alia, as grounds of defence, that, with regard to the dividends uplifted by him prior to February 1854, and interest effeiring thereto, the said fourteen shares National Bank stock, and three shares Edinburgh and Leith Gas Company stock, had been transferred by him to his daughter the said Sarah Bladworth in payment of these dividends, and the interest thereon; and that, with regard to the dividends since February 1854, he was and had always been willing to hand them over, with interest, to the said Peter Jonathan Bladworth M'Nab, and the said Peter M'Nab as his administrator-in-law. The result of the last mentioned action was, that the Lord Ordinary ( Kinloch), on 8th July 1859, pronounced an interlocutor in which he gave effect to the said defence stated, as regards the dividends prior to February 1854, and interest thereon; and in the event of payment of the dividends posterior to that date, found him entitled to absolvitor from the action. Payment of the said dividends, and interest thereon, was accordingly at once made to the respondent, as administrator-in-law for his son.

After stating these facts, the petitioner then set forth that, “on the death of his mother, the said Sarah Bladworth, he became entitled to (1) the said twenty shares of National Bank stock; and (2) the dividends thereon which had been uplifted by the said Jonathan Bladworth subsequent to February 1854, and interest effeiring thereto. That it was also a question whether he did not become entitled to the sums of £267, 8s., and £108, 15s., realised by the sale of the said three Edinburgh and Leith Gas Company shares, and fourteen shares of National Bank stock, on the footing that the said sums were the property of the said Sarah Bladworth at the time of her death, exclusive of the jus mariti of her husband. That the said Peter M'Nab, his father, had wrongfully appropriated to his own purposes the said twenty bank shares, to which the petitioner had right as aforesaid. He had also appropriated to his own purposes the said £40 of accrued dividends and interest, and he had, from time to time, as they fell due, uplifted and applied to his own purposes the dividends effeiring to the said twenty shares National Bank stock during the period between December 1857 and 12th May 1871. That on or about 12th May 1871, when the petitioner had attained the age of fourteen years, the said Peter M'Nab induced him to accompany him to the office of the National Bank of Scotland in Edinburgh, and there sign a deed or document. The petitioner did not know what the said document was, or why he was asked to sign it, and it was not read over to him. From inquiries, which have since been made, it has been ascertained that the said document was a transfer of the said twenty shares National Bank stock. That the said Peter M'Nab, on 12th May 1871, received the sum of £574 sterling as the price of the said twenty shares, and thereafter applied it to his own purposes, and used it in the course of his trade as an ironmonger, as if it. was his own proper money. And that said Peter M'Nab was in insolvent circumstances.

“That, in the circumstances above set forth, it had become necessary that a curator bonis should be appointed to the petitioner the said Peter Jonathan Bladworth M'Nab, for the purpose of vindicating his rights as regards the matters before alluded to, and to protect his interests for the future, until such time as he arrived at the age of majority.”

In his answers to this petition, the respondent averred the refusal of Mr Jonathan M'Nab to account for the funds held in trust for his daughter

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and her son, and for the annual proceeds thereof, and the necessity of the action already mentioned in order to vindicate the petitioner's right to the said property. He stated that the expenses incurred in these actions amounted to the sum of £355,13s. 9d., and that the price realised from the sale of the twenty National Bank shares was £572. The principal part of the balance was invested by him in the purchase of the fee of a house in Juniper Green on his son's behalf,—the said house being liferented by a lady between sixty and seventy years of age. He also stated that he had expended a considerable sum annually on the maintenance, clothing, and education of the petitioner, to an amount much exceeding the dividends on the twenty shares of the National Bank of Scotland, uplifted by him as administrator-at-law of his son. That, as there were no other means for reimbursing him the expenses which he had disbursed on the petitioner's behalf, the petitioner concurred with him, in the month of May last, in selling the twenty shares of the National Bank stock belonging to him. The proceeds were received by him, and will be duly accounted for at the proper time, and, so far as necessary, will be duly applied and expended in the affairs of the petitioner. That he is perfectly solvent, and is willing to aliment and educate the petitioner in a suitable manner. He has an undoubted right to regulate both the aliment and education of his son, and there is no allegation that he has failed in his duty in that respect. And he submitted that the prayer of the petition, which in effect sought to deprive him of his power and rights as administrator-at-law of his son, for which there is no relevant or sufficient ground set forth, and which it was not competent for their Lordships to do, ought to be refused, with expenses.

On the Lord Ordinary's report to the Inner-House, Pattison was heard for the respondent, and contended that this was not a petition which fell under the Act of 1857 at all. It was not the ordinary case of the appointment of a curator bonis, but was in effect an application for the removal of a trustee, or rather one looked upon by the law with even more favour than a trustee, and for the appointment of a curator bonis in his stead. That this was not competent before the Lord Ordinary. He farther contended that there was no case on the merits.

Rhind in reply.

Authorities— Robertson, 3 Macph. 1077; Wardrop v. Gossling, Feb. 6, 1869, 7 Macph. 532; Mitchell, July 20, 1864, 2 Macph. 1378; Earl of Buchan, Dec. 21, 1839, 2 D. 275; Stevenson's Trustees v. Dumbreck, 19 D. 462; Johnstone v. Wilson, 1 S. 558; Govan, M. 16, 263; Forbes, M. 16, 287; Wilkie, M. 16, 311; Boswell, M. 16, 353; Graham, M. 16, 383; Qlasford, 11 D. 1030; Barclay, 4 Brown's Sup. 405; Bell's Prin. § 2068; 20 and 21 Vict. c. 56, § 4.

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