Scottish Court of Session Decisions

In 1882 the late Earl of Glasgow borrowed under the sanction of the Court £150,000 over his entailed estates. Miss Louisa Gertrude Montagu Cochrane, daughter of the petitioner the Hon. Thomas Horatio Arthur Ernest Cochrane, Dunkeith, Kilmarnock, was one of the heirs of entail whose consent was required. In these proceedings Mr William Smith, LL.D., Edinburgh, was appointed curator ad litem to Miss Cochrane. The value of her interest was fixed at £9250, but this sum was not paid or secured.

In 1885 Lord Glasgow conveyed his whole

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estate to trustees for behoof of creditors. He was made notour bankrupt in 1886, but the creditors agreed that his estates should be realised by the trustees under the trust-deed.

The entailed estates were accordingly realised by Lord Glasgow and his trustees, and the secured creditors paid in full. There remained a balance of Lord Glasgow's means which it was estimated would be sufficient to pay to his unsecured creditors, including Miss Cochrane, a dividend of 7s. 6d. in the pound.

The petitioner and his wife Lady Gertrude Cochrane, Lord Glasgow's eldest daughter, settled with the unsecured creditors, with the exception of Miss Cochrane and Lady Muriel Boyle, Lord Glasgow's second daughter, to whom a similar debt was due. Mr Cochrane and Lady Gertrude Cochrane obtained assignations to the claims of the creditors, with whom they settled, and thus acquired right to the reversion of Lord Glasgow's estates, subject to the debts due to their daughter and Lady Muriel Boyle.

Lord Glasgow's trustees were willing to pay to Miss Cochrane a dividend of 7s. 6d. in the pound in full of her claim, but as she was a pupil, having been born in 1882, they were not satisfied that they would be in safety to take a discharge from the petitioner, who, having acquired the reversion of Lord Glasgow's estate, had an interest adverse to that of his daughter.

Mr Cochrane accordingly applied for the appointment of a factor loco tutoris to his daughter, for the purpose of uplifting, discharging, and applying for her behoof the said debt of £9250, and Mr James Auldjo Jamieson was appointed to the office.

Mr Jamieson after his appointment found that Dr Smith had been Miss Cochrane's curator ad litem in the entail proceedings, in which she had been found entitled to £9250 as the value of her consent. He therefore raised an action against Dr Smith to compel the latter to make good any loss sustained by Miss Cochrane from his having failed to see that the sum of £9250 was paid or secured.

The action came before Lord Kyllachy, who dismissed it on the ground that Mr Jamieson's title was limited to uplifting and discharging the debt.

In these circumstances the present petition was presented, praying (1) for recal of Mr Jamieson's appointment, and (2) for the appointment of a new factor loco tutoris with larger powers, and in particular with power “to sue for, uplift, and receive the said sum of £9250 from such persons or estates as may be legally liable therefor.”

Upon 13th January 1891 Lord Low reported the case to the Second Division.

“ Opinion.—[ After stating the facts]—The primary, and so far as the statements in the petition go, the only object for asking that extended powers should be given to the new factor is that he may have a title to prosecute the action against Dr Smith. I doubt if this is a sufficient reason for granting the powers craved, because I do not think the Court has been in use to supersede the father of a pupil, or to relieve him of the tutorial duties involved in his position, unless there is a conflict of interest between him and his child, or unless the circumstances of the father, as, for example, from insolvency, are such that it is apparent that the child's interest would not be safe in his hands.

As regards the claim against Dr Smith, I do not think that there is any conflict of interest between the petitioner and his daughter, and I observe that Lord Kyllachy in his judgment in the action to which I have referred takes the same view. As to the title of Mr Cochrane to make the claim as administrator-in-law to his daughter, I do not think there can be any doubt.

It is, however, right to say that it was stated at the bar that the claim against Dr Smith is not the only matter with which the factor, if appointed, may have to deal, but that he may have to raise questions with Lord Glasgow's trustees and with the petitioner himself. I can understand that this may be the case. If, for example, the reversion of Lord Glasgow's estate acquired by the petitioner greatly exceeds in value the amount for which he settled with the creditors, Miss Cochrane may be entitled to demand payment of her debt in full either from the trustees or from the petitioner.

In the whole circumstances I should hesitate to refuse the petition, but as it seems to me to raise a question of novelty in regard to a jurisdiction which the Court have always exercised with caution I have thought it right to report it. I may add that I think it better not to deal with the recal of Mr Jamieson's appointment until it is settled whether a new factor with additional powers is to be appointed.”

It was stated at the bar that in consideration of having settled with the other unsecured creditors, the trustees had conveyed to Mr Cochrane the estate of Crawford Priory in Fife at a valuation the amount of which did not appear.

The petitioner argued—The application was necessary, as owing to the position of her father to the late Lord Glasgow's estate, and his dealings with the trustees, it was impossible for him to sue an action against Dr Smith, who might allege in defence that if sequestration had been taken out, all the creditors would have been paid in full and there would have been no loss to Miss Cochrane, and therefore no damage for him to make good. It was quite possible that when the affairs of the estate were looked into, the interests of Miss Cochrane and her father might be conflicting, looking at the position each had towards the trust-estate, and that had always been held to be a good ground for the appointment of a factor loco tutoris—Mars v. Riley, March 9, 1848, 20 Jur. 308; Mann, July 19, 1851, 14 D. 12; Robertson, July 12, 1865, 3 Macph. 1077; Sawers, Petitioner, March 9, 1850, 12 D. 905.

At advising—