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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ferguson's Curator Bonis [1905] ScotLR 42_689 (04 July 1905) URL: http://www.bailii.org/scot/cases/ScotCS/1905/42SLR0689.html Cite as: [1905] ScotLR 42_689, [1905] SLR 42_689 |
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Page: 689↓
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A curator bonis to one incapax having failed to recover from the wife of his ward a policy of assurance belonging to the curatorial estate, which had to be realised for the proper execution of the curatory, obtained against her a decree for its delivery and charged thereon, but the decree was not ob—tempered. The curator presented a note to the Lord Ordinary, craving the Court to ordain the defender to appear and bring the document in question, or, alternatively, to grant warrant to messengers-at-arms to search for and take possession of the policy, and if necessary for that purpose to open all shut and lockfast places.
His Lordship having reported the note to the Division, the Court granted warrant in terms of the second alternative of the prayer.
On 3rd September 1903 Charles Simon Romanes, C. A. in Edinburgh, was appointed curator bonis to John Scotland Ferguson, formerly spirit merchant in Airdrie, whose estate, inter alia, consisted of a policy of assurance for £300 granted by the Prudential Assurance Company, Limited, Holborn Bars, London, over the life and in favour of the said John Scotland Ferguson, numbered 151,334. The curator having entered upon office realised part of the estate. Debts due by the curatory estate, however, remained unpaid, and the curator was without sufficient funds to meet them, or to satisfy the creditors, who were threatening diligence. It was therefore essential to the fulfilment of his duties that the curator should realise the value of the said policy, which was, however, in the possession of Mrs Marion Jack or Ferguson, his ward's wife, who resided with her husband at Airdrie. Mrs Ferguson consistently refused to deliver it to him in spite of his repeated requests. The curator therefore brought an action for its delivery, and after appearance had been made but no defences lodged, obtained a decree in absence on 5th April 1905. On 4th June 1905 a charge was given on this decree, but though the days of charge expired, the decree was not obtempered. The curator had obtained a warrant to imprison, but from his experience he was satisfied that such a proceeding would be ineffectual without power to search for the document.
In these circumstances the curator presented a note to the Lord Ordinary on the Bills ( Lord Johnston) setting forth the facts, and craving his Lordship to ordain “the said Mrs Marion Jack or Ferguson to appear personally before your Lordship on a date to be fixed by your Lordship, and that within the Parliament House, and to bring with her, exhibit, and produce before your Lordship the said policy of assurance, or otherwise to grant warrant to messengers-at-arms to search for, recover, and take possession of the said policy of assurance, and if necessary for that purpose to open all shut and lockfast places, and to deliver the said policy of assurance to the said Charles Simon Romanes as curator bonis foresaid.”
The Lord Ordinary made verbal report to their Lordships of the First Division stating that in his opinion he had not power to grant the warrant craved.
Lord Johnston has had the matter before him, and reports that if the order is to be obeyed other means than imprisonment must be used to get the document. I am of opinion that the order of the Court must be obeyed and the document produced. Imprisonment in such cases is not only in modum pœnœ; its object is to compel per formance, and here, if, as we are informed, it would fail in that object and the document would not be forthcoming, we must have recourse to other means. I am of opinion, therefore, that we should grant warrant to messengers-at-arms to search for the policy, and if necessary to open all shut and lockfast places.
The Court pronounced this interlocutor:—“The Lords, on the verbal report of Lord Johnston, Ordinary, and having considered the note for the curator bonis, with relative statement by the curator bonis, grant warrant to messengers-at-arms to search for, recover, and take possession of the policy of assurance for £300 mentioned in the said note granted by the Prudential Assurance Company, Limited, Holborn Bars, London, over the life of the incapax John Scotland Ferguson, numbered 151,334, and if necessary for that purpose to open all shut and lockfast
Page: 690↓
Counsel for the Petitioner— A. M. Anderson. Agents— Balfour & Manson, S.S.C.
