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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Penny v. Penny [1894] ScotLR 32_9 (23 October 1894) URL: http://www.bailii.org/scot/cases/ScotCS/1894/32SLR0009.html Cite as: [1894] ScotLR 32_9, [1894] SLR 32_9 |
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Page: 9↓
Sheriff of Aberdeen.
Held that it is competent for a sheriff, under section 4 of the Judicial Factors Act 1880, to appoint a curator bonis to a minor.
Section 4 of the Judicial Factors Act 1880 provides that “From and after the commencement of this Act it shall be competent for sheriffs in the several sheriff courts in Scotland or for their substitutes, and they are hereby authorised and empowered, to appoint judicial factors in cases of estates the yearly value of which (heritable and moveable estate being taken together) does not exceed £100; … and for the purposes of this enactment the following provisions shall have effect—that is to say, (1) until otherwise prescribed, proceedings for the appointment of judicial factors in the sheriff court shall commence by petition to be presented to the sheriff or sheriff-substitute of the county in which the pupil or insane person is resident.” …
The interpretation clause of the same Act (section 3) provides—“In this Act the following words and expressions shall have the meanings hereinafter assigned to them, unless there be something in the subject or
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context repugnant to such construction— that is to say, the expression ‘judicial factor’ shall mean factor loco tutoris and curator bonis.” … Charles Penny, a minor, whose father was deceased, presented a petition in the Sheriff Court at Aberdeen, with his mother's consent, for the appointment to him of a curator bonis. The yearly value of his estate was less than £100. The next-of-kin of the petitioner's father resident in Scotland were called as defenders, but no defences were lodged.
On 21st July 1894 the Sheriff-Substitute ( Brown) refused the petition as incompetent.
The petitioner having appealed, the Sheriff ( Guthrie Smith) dismissed the appeal and affirmed the Sheriff-Substitute's interlocutor.
The petitioner appealed to the Court of Session, and argued—Taking the principal enactment contained in section 4 by itself, there was no difficulty in holding that the Sheriff had power to make the appointment craved. The difficulty arose from the terms of the first sub-section of section 4, which referred to pupils and insane persons, but made no mention of minors. But that was a subsidiary provision dealing with matters of procedure, and could not be held to limit the purpose of the main enactment. Apart from the terms of that sub-section, there was every reason for holding that the 4th section was intended to confer upon the Sheriff the power to appoint in the case of minors. It was important that he should have that power, as a summons for choosing curators was an expensive form of process, and no reason could be suggested why he should have power to appoint to insane persons and not to minors. The view of the Legislature seemed to be that sheriffs had this power, for under the Judicial Factors Act of 1889 a factor loco tutoris appointed by a sheriff became ipso facto curator bonis on the pupil emerging from pupillarity—52 and 53 Vict. c. 39, sec. 11.
At advising —
That refusal of the Sheriff proceeds upon his own view of the limitations of the Act. I think the Sheriff is wrong. The main enactment is contained in the first part of section 4 of the Act—that part which precedes the various sub-sections. That enactment is expressed in quite general terms, and from it the Sheriff derives his jurisdiction. The section says—“From and after the commencement of this Act it shall be competent for sheriffs in the several sheriff courts of Scotland, or for their substitutes, and they are hereby authorised and empowered, to appoint judicial factors in cases of estates the yearly value of which (heritable and move—able estate being taken together) does not exceed £100” … Now, the words “judicial factor” have in the immediately preceding section been defined to mean “factor loco tutoris and curator bonis.”
Now, it appears from the sequence of the Acts of Parliament bearing on this matter, and in accordance with the ordinary and proper use of the term, that “ curator bonis” is applicable to the factor appointed both in the case of minors and of the insane; and, putting section 4 and the immediately preceding section together, the intention of the Act seems clear, and there appears to be no doubt of the Sheriff's power to appoint a curator bonis in the case of a minor. The difficulty arises from the 1st sub-section of section 4, but that sub-section has a subsidiary position to the main enactment, and does no more than provide how petitions for the appointment of judicial factors are to proceed, and it takes as the criterion for ascertaining the mode by which the Sheriff Court is to be selected “the county in which the pupil or insane person is resident.” But that is not enough to lead us to hold that the broad words of the main part of the 4th section are to be restricted to the cases of pupils and insane persons by a clause which avows itself to be one concerned with procedure.
I then inquire, “Is there any reason that can be suggested for limiting the application of that section, seeing that the mode of introducing the alleged limitation is inartistic and inappropriate?” I see none. There is no consideration of convenience that makes it desirable that the Sheriff should have a power of appointment in the case of an insane person and not in the case of a minor. The question is, as has been remarked, a comparatively short one; and it seems to me that there are adequate grounds for holding that the Sheriff has the power of appointing a curator bonis in the case of a minor.
I am therefore of opinion that we should recal the Sheriff's interlocutor and remit to him to proceed.
The Court recalled the interlocutors of the Sheriff and Sheriff-Substitute and remitted to the Sheriff to proceed.
Counsel for the Petitioner— H. Johnston, Agent— R. C. Gray, S.S.C.
