Scottish Court of Session Decisions

On 26th April 1888 Charles Yule, accountant, Glasgow, in consideration of a sum of £500 which he had received from Ottho Adrian Clayton Alexander, curator bonis to George Russell Alexander, a person of unsound mind, granted a bond and assignation in security over certain heritable subjects, binding himself to repay the sum borrowed “to the said George Russell Alexander, his executors and assignees whom so ever.”

On 23d January 1890 James M'Meeken, accountant, Glasgow, was appointed curator bonis to George Russell Alexander in place of Ottho Adrian Clayton Alexander.

On 10th October 1890 George M'Meeken, having recorded the bond and assignation above mentioned, charged Charles Yule to

Page: 152↓

make payment of the principal sum due under the bond, with the interest thereon. The charge proceeded “at the instance of George Russell Alexander … against Charles Yule, accountant, Glasgow,” but Yule was charged to make payment of the sum due “to James M'Meeken, accountant, Glasgow, curator bonis to the said George Russell Alexander.”

Yule then presented a note of suspension of the above charge against M'Meeken, the curator bonis, and George Russell Alexander, the ward.

The complainer stated several objections to the competency of the charge, and, inter alia, pleaded—“(2) The charge under suspension bearing to proceed at the instance of and for payment to a person who is not capable of giving instructions or authority the reanent, is wrongous, and should be suspended as craved.”

On 15th January 1891 the Lord Ordinary ( Wellwood) repelled the second plea-in-law for the complainer, and before answer allowed parties a proof of their respective averments in regard to the validity of the charge.

“ Opinion.—The complainer's counsel addressed to me a subtle argument in support of the complainer's second plea-in-law, which is founded on the allegation that the charge sought to be suspended proceeds at the instance of the ward George Russell Alexander, and not of the respondent, his curator bonis. I am not prepared to sustain that plea. The obligation in the bond which was granted when the ward was under curatory is to repay the sum borrowed ‘to the said George Russell Alexander (the ward), his executors and assignees whom so ever.’ Thus the creditor in the bond is the ward. The granter of the bond consents to registration for preservation and execution; and the registered deed is therefore equivalent to a decree in favour of the ward. The warrant authorising execution, which is inserted in terms of 49 and 41 Vict. c. 40, simply runs—‘And the said Lords grant warrant for all lawful execution hereon.’ Now, it is true that the charge bears to be given by virtue of the bond and warrant thereon, ‘at the instance of George Russell Alexander;’ but then it charges the debtor to make payment to the respondent, curator bonis to the said George Russell Alexander. It may be that it would have been more correct to have stated at the outset of the charge that it was given at the instance of the curator bonis, but I think it sufficiently appears from the charge that it was given with the concurrence of the curator bonis, who was to receive the money and discharge the debtor. The debt is a debt due to the ward, and the decree is a decree in favour of the ward; and the position of the curator bonis in recovering the debt is simply that of commissioner or factor enforcing his ward's rights. I therefore think that this, very technical objection, although specious, is not well founded, and should be repelled. On the other matters I allow a proof before answer.”

On 21st July the Lord Ordinary pronounced this interlocutor—“Having considered the debate, together with the proof and whole process, in respect it is admitted by the respondent that on 13th February 1891 he received payment from the complainer's factor of a sum of £28, 5s. 6d., and that he is willing that the said sum should be imputed towards payment of the sum for which the charge complained of was given of consent to the respondent, suspends the charge to the extent of the said sum of twenty-eight pounds five shillings and sixpence sterling: Quoad ultra repels the reasons of suspension: Finds the letters orderly proceeded, and decerns.”

The complainer reclaimed and argued—The charge was irregular and illegal in form, in respect that it proceeded at the instance of the ward, who had been found incapable of managing his own affairs. The title was in the curator— Scott, Petitioner, February 21, 1856, 18 D. 624—and the diligence should proceed at his instance. An action at the instance of the ward would be incompetent; a fortiori therefore he had no title to proceed with diligence. It might be said that the concurrence of the curator was apparent on the face of the bond, but that would not make the ward's title to use the diligence good— Hislop v. M'Ritchie's Trustees, June 23, 1881, 8 R. (H. of L.) 95.

Argued for the respondent—The curator was appointed to act for the ward and in the ward's name— Wills, June 20, 1879, 6 R. 1096; Scott's case supra. He was in the position of a commissioner entitled to instruct diligence at the instance of the ward. The ward was the creditor in the bond, and therefore was the person at whose instance the charge should proceed, for the curator had made up no title to the ward's estate. In any case, the diligence, on the face of it, was practically at the instance of the curator bonis, as the payment was to be made to him.

At advising—