Scottish Court of Session Decisions

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Cite as: [1884] SLR 21_597, [1884] ScotLR 21_597

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SCOTTISH_SLR_Court_of_Session

Page: 597↓

Court of Session Inner House First Division.

Wednesday, June 4. 1884.

[ Lord Lee, Ordinary.

21 SLR 597

Poor Andrew Anderson and others

v.

Muirhead.

Subject_1Process
Subject_2Curator ad litem
Subject_3Discharge
Subject_4Judicial Factor.
Facts:

In an action at the instance of three minor children and their curator ad litem, who had been appointed when they applied for the benefit of the poor's roll, to recover damages for the death of the children's mother, a tender was made by the defender and accepted. The Lord Ordinary reported the case to the First Division, on a motion by the pursuers that the grandfather of the children should be authorised and appointed to receive and administer the money for behoof of the minor pursuers, and grant a discharge therefor. The Court held that a curator bonis must be appointed to the children in ordinary form.

Headnote:

This case was verbally reported to the First Division by Lord Lee, Ordinary, and the material facts are given in the opinion of the Lord President, infra.

The cases of Murphy or Collins v. Eglinton Iron Company, 19 S.L.R. 440, and M'Avoy v. Young's Paraffin Light and Mineral Oill Company, 19 S.L.R. 441, were quoted for the pursuers.

At advising

Judgment:

Lord President—As I understand, the pursuers of this action are the children of Mrs Margaret Anderson or Macaulay. The eldest is sixteen, the second fourteen, and the third twelve years of age, and they have sued Miss Emily Grosset Muirhead for damages in respect of the death of their mother, and have had a tender made to them by the defender of £120. This tender they have accepted. Thereupon the Lord Ordinary on 27th May pronounced this interlocutor—“The Lord Ordinary in respect of the minute of tender for the defender, No. 9 of process, and of the statement on the part of the pursuers that they now accept the same, discharges the order for adjustment of issues: Finds the pursuers entitled to the sum of £120 as tendered, and expenses of process as the same shall be taxed, upon delivering to the defender of a sufficient discharge: Allows the pursuer to lodge an account of his expenses, and remits to the Auditor to tax the same and report, and continues the cause.” Now, the question comes to be, how the pursuers' claim is to be discharged? That is the form the question must take. There was a curator ad litem appointed to these children, when they applied for the benefit of the poor's roll, and before the case came before the

Page: 598↓

Lord Ordinary; and this curator is, of course, still a party to the cause. I understand the proposal made to the Lord Ordinary was that the grandfather of these children should be appointed in this process as factor or curator to them, and that authority should be given to him to discharge their claim. We were referred to two cases occurring in the Second Division of the Court, with the particulars of which we are not acquainted, but where something of this kind is said to have been done. But the practice in this Division has been opposite. I find a case of Pratt v. Knox reported in 17 D. 1006 (28th June 1855), which is to the following effect. [ His Lordship read the report of the case.] Then there was another case before us which occurred in 1881— Anderson v. Kidd and Others, March 18, 1881, not reported. It has not been reported, but I have my papers with a note upon them of all that took place. There had been in that case a verdict for the pursuers, who were a certain mother and her children, and then a motion was made for a new trial. Before disposing of that motion the Court desired to understand whether the mother would undertake to hold the whole amount awarded by the jury in trust for herself and her children. She declined to do so, or, at all events, some difficulty arose in following that course, and accordingly, on 16th February 1881, the Court continued the cause until a factor loco tutoris should be appointed to the children. On 17th March, a factor having been appointed in common form, by application to the Court, he was sisted a party to the cause, and then he and the mother entered into a joint-minute which specified the proportions in which the sum awarded by the jury should be divided amongst the pursuers. We then refused the motion for a rule, applied the verdict, and decerned. The present case appears to me to be of precisely the same nature as those I have referred to. I think we cannot depart from our established practice, and that we should instruct the Lord Ordinary that nothing further can be done in the cause until a curator, or a factor of some kind, has been appointed to these children.

Lord Mure and Lord Adam concurred.

Counsel:

Counsel for Pursuers— Armour. Agent — J. A. Trevelyan Sturrock, S.S.C.

Counsel for Defender — Jameson. Agents— Webster, Will, & Ritchie, S.S.C.
1884