Scottish Court of Session Decisions

On 15th August 1890 Lord Kincairney, Lord Ordinary on the Bills, appointed Mr Harry Cheyne, W.S., curator bonis to Dr James Dewar. Dr Dewar reclaimed against this appointment to the First Division, who on 8th November adhered to the Lord Ordinary's interlocutor, and pending an appeal by Dr Dewar to the House of Lords allowed Mr Cheyne to extract his appointment and act as curator bonis. The First Division did not deal with the question of expenses.

On 4th September Dr Dewar raised an action in the Sheriff Court of Edinburgh against the curator bonis and others for delivery of all documents and papers in their possession which belonged to him. This action was dismissed, and on appeal the First Division on 8th November adhered.

Meanwhile on 23rd October and 6th December Dr Dewar granted two cheques drawn on the Bank of Scotland for £300 and £700 respectively in favour of Messrs Mitchell & Baxter, W.S., his law-agents, to meet the expenses they had incurred in opposing the appointment of a curator bonis in the Court of Session, and those they would incur in prosecuting the appeal to the House of Lords. These cheques the Bank of Scotland, acting on the instructions of Mr Cheyne, the curator bonis, declined to honour, and Dr Dewar and Messrs Mitchell & Baxter thereupon, on 13th January 1891, raised an action against the bank and Mr Cheyne for payment of the cheques.

On 24th March the Lord Ordinary ( Wellwood) dismissed the action as irrelevant.

“ Opinion.—The defender Mr Cheyne was appointed curator bonis to Dr Dewar by Lord Kincairney on 15th August 1890. The application for appointment was opposed on behalf of Dr Dewar, who was at that time in Saughton Hall Asylum, and on the appointment being made a reclaiming-note was presented on his behalf to the First Division of the Court. On 8th November 1890 the First Division adhered to the Lord Ordinary's interlocutor and refused the reclaiming-note. The curator thereafter extracted his appointment and entered on the duties of his office.

When Dr Dewar was removed to Saughton Hall Asylum there was standing at his credit, in account with the Bank of Scotland, a considerable sum of money. After the Lord Ordinary's interlocutor, and before the case was heard in the Inner House, Messrs Mitchell & Baxter, Dr Dewar's agents, applied to Dr Dewar, who was still in confinement, for a cheque to meet expenses incurred and to be incurred in opposing the appointment, suggesting £300 as a suitable sum. Dr Dewar thereupon, on 22nd October 1890, signed the cheque for £300, which is first sued on in the summons.

After the appointment had been confirmed by the interlocutor of the Inner House, Dr Dewar on 6th December 1890 signed a cheque for £700 (second sued on) to meet the expenses of taking the case to the House of Lords.

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This action is raised by Dr Dewar ‘and Mitchell & Baxter, law-agents and conveyancers in Edinburgh, his solicitors,’ to have the defenders the Bank of Scotland and Mr Cheyne ordained to make payment to the pursuers of the two sums of £300 and £700 contained in the said two cheques, together with the expenses of protesting and noting the cheques. The summons does not contain any alternative conclusions for damages, or for payment to Messrs Mitchell & Baxter of money properly and necessarily expended by them for Dr Dewar. It is framed, no doubt advisedly, on the footing that Dr Dewar was capable of granting the cheques, and that on presentation they operated as an assignation of the sums contained in them in favour of the holders Mitchell & Baxter—Bills of Exchange Act 1882, sec. 53.

It was at first contended for the pursuers that it must be held that Dr Dewar not having been cognosced, was and is capable of managing his own affairs, or at least that it must be so held until it is finally decided by the Court of last resort that he is not. It was maintained that it lies upon any person denying his capacity to contract or dispose of his means to prove this in each case before a jury. I am unable to take this view. I am of opinion that although the appointment of a curator bonis is not permanent in this sense that it falls on the nearest agnate coming forward and claiming the office of tutor, or on the reconvalescence of the ward, it has while it lasts the same effect as cognition following on a brieve from Chancery and the verdict of a jury in so far as regards the ward's estate. Now, the effect of cognition is, that until a declarator of reconvalescence is brought, it is conclusive of the incapacity of the lunatic during the period which the verdict covers. It was keenly maintained in the case of Bryce v. Graham, 6 Sh. 428, affd. 3 W. & S. 323, that it was beyond the powers of the Court, without proceeding on the verdict of a jury, to deprive a man of the management of his own affairs, but it was solemnly decided by the House of Lords, after a remit to the Court of Session (the proceedings in which are reported in 6 Sh. 425), that in respect of a practice of above 100 years such appointments are competent. The effect of an appointment by the Court of a curator bonis is, therefore, as regards the estate while it lasts, practically the same as cognition following upon a verdict of a jury—that is to say, the ward is held to be as incapable as a pupil of alone managing his own affairs or disposing of his property.

I am therefore of opinion that the effect of the judgment of the Court was to establish that at the dates when the cheques were granted Dr Dewar was incapable of effectually dealing with his means and estate. Therefore the bank and the curator bonis are relieved of the burden which would otherwise have been upon them to prove Dr Dewar's incapacity by other evidence. Any other view would lead to the result that it would be possible for a person of unsound mind, pending appeal from Court to Court, to dispose of the whole of his estate, and thus defeat the very object of the appointment of a curator bonis.

In the concluding argument for the pursuers it was strongly urged that at least the pursuers are entitled in this process to prove that the sums sued for were in whole or part properly and necessarily expended for behoof of Dr Dewar, and that they are entitled to recover such sums as may have been instructed to have been properly expended, from the curator bonis. If this had been practicable, I should have been glad to utilise the action for such a purpose. But the defenders do not consent to this course, and I cannot in the absence of consent adopt it. In the first place, the action is framed upon another footing. Dr Dewar himself is made the leading pursuer, and the action is laid on the cheques alone. As I have indicated, this shape of action was no doubt intentionally adopted for this reason, that the cheques were not granted exclusively for expenses already incurred, but also in great part for expenses to be incurred in carrying the opposition further; and therefore the action, at least in so far as regards the sum of £700, could not have been laid on the footing of disbursements and expenses already made and incurred on behalf of the ward. There was also, perhaps, this consideration, that if the cheques are good no question as to the amount expended or required need arise. The bank must pay to the extent of the funds in their hands.

I therefore feel that I have no alternative but to dismiss the action. A curator bonis having now been appointed, who is administering the ward's estate, the proper course is to apply to him for repayment of past expenses, and an advance of any further expenses which may be required to prosecute the defence. If he does not think fit to pay at his own hand, or to apply for special powers to the Court, it is open to the pursuers themselves to apply to the Court for special powers or instructions to the curator bonis to repay or advance the necessary funds. I think it right to say that I have little doubt that on proper application being made to the Court the curator bonis will be empowered or ordered to pay out of the ward's funds the proper expenses connected with his opposition to the application for appointment in this Court. An advance to meet the expenses of an appeal to the House of Lords is in a different position; that will be a matter for the equitable consideration of the Court, having regard to the whole circumstances of the case with which they are familiar. No doubt in disposing of the application they will give due weight to the serious importance of the question to Dr Dewar, the conflict of medical opinion, and the fact that Dr Dewar's estate, out of which the expenses must come, is so substantial.” The curator bonis thereafter on 9th June presented a note to the Junior Lord Ordinary for authority to pay the expenses Messrs Mitchell & Baxter had incurred in opposing his appointment

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before the Lord Ordinary and in the Inner House, as taxed, and also to advance a sum on account of the expenses they might incur in carrying on the appeal in the House of Lords, provided they found caution to repeat the latter sum if the House of Lords refused to allow them their expenses.

Meanwhile on 25th June the House of Lords affirmed the decision of the Court of Session, and found Messrs Mitchell & Baxter entitled to their expenses in that House.

Dr Dewar and Messrs Mitchell & Baxter reclaimed against Lord Wellwood's interlocutor in the action on the cheques, and the Junior Lord Ordinary, on the motion of the curator bonis, reported his note to the First Division so that it might be heard together with the reclaiming-note.

Argued for the curator—The expenses in opposing the curator's appointment should alone be allowed. The Sheriff Court action was unnecessary for that purpose, and could not be made a charge on the ward's estate. The Lord Ordinary had decided rightly in the action for payment of the cheques. The pursuers had never presented any account of their expenses to the curator, but had sued on the cheques. Dr Dewar was precluded from signing cheques after the curator's appointment, for a man under curatory was in the same position as one cognosced— Bryce v. Graham, H. of L., 3 W. & S. 323.

The Bank of Scotland adopted the curator's argument in the action for payment of the cheques.

Argued for Messrs Mitchell & Baxter—The expenses in the Court of Session followed as a necessary consequence of the finding in the House of Lords. The other proceedings were of importance and in view of the extreme difficulty of the law agents' position they were entitled to their expenses. The law as to a lunatic had undergone modification, and expenses incurred on his behalf should be allowed— Rhodes v. Rhodes, L. R., 44 Chan. Div. 94, and Wentworth v. Tubb, 2 Younge & Collier's Ch. Rep. 537. As it was competent for him to oppose the curator's appointment, he could grant cheques for conducting that opposition.

At advising—