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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacDonald's Trustee v. Medhurst and Others [1915] ScotLR 698 (10 June 1915) URL: http://www.bailii.org/scot/cases/ScotCS/1915/52SLR0698.html Cite as: [1915] ScotLR 698, [1915] SLR 698 |
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Page: 698↓
An application for the appointment of a curator ad litem to a party to a special case, who was insane, refused as unnecessary in that the insane person was adequately represented by persons who were parties to the case.
Question whether the application was competent.
Observations per Lord Johnston on the practice of the appointment of curators ad litem and its competency.
Robert Urquhart, sole surviving trustee acting under an antenuptial contract of marriage entered into between the Reverend William Macdonald and Miss Louisa Hoyes, first party, Mrs Norma Gordon Hunter or Medhurst, second party, and the said Mrs Norma Gordon Hunter or Medhurst and others, third parties, brought a Special Case for the opinion and judgment of the Court. In Single Bills counsel for the first and second parties stated that Dr Donald Macdonald, one of the parties of the second part, was an inmate of a lunatic asylum, and asked the Court to appoint a curator ad litem to him.
Counsel referred to Swan's Trustees v. Swan, 1912 S.C. 273, 49 S.L.R. 222, and Mackenzie's Trustee v. Mackenzie, 1908 S.C. 995, 45 S.L.R. 785.
At advising—
I am of opinion that the application ought to be refused, on the ground that it is in the circumstances unnecessary, in as much as the interest of Dr Macdonald is adequately represented by persons who are parties to this case.
The motion when made was supported by reference to a decision in the Second Division of the Court in the case of Swan, 1912 S.C. 273, 49 S.L.R. 222, in 1912. On examination of the authorities it was found that the decision in question was in apparent conflict with a prior decision in the same Division of the Court, and further, that doubts existed regarding the competency of the application.
Now my brother Lord Johnston has been at pains to formulate the doubt and the reasons which have given rise to the doubt, and has expressed them in a written opinion which he would have delivered had he been present with us to-day, and which I shall by-and-by hand to the reporters.
Although his Lordship agrees with me in thinking that the application here is unnecessary, I think it desirable that the profession should know that doubt exists regarding the competency, and that in future a motion such as this will not be granted as a matter of course without discussion, and accordingly I invited Lord Johnston to give expression to his views upon the competency of the application.
For my own part I desire expressly to reserve my opinion on the question of competency. My sole reason for thinking that this application should be refused is that in the circumstances I regard it as unnecessary.
The circumstances of the present case are that by her marriage contract in 1860 Miss Louisa Hoyes, afterwards Mrs Louisa Macdonald, conveyed certain securities to trustees for behoof of herself and her husband, the Rev. William Macdonald, in life-rent and the issue of the marriage in fee, but with a destination-over, in event of no issue and of Miss Hoyes not entering into a second marriage, in favour of three ladies,
Page: 699↓
There was no issue of Mrs Louisa Macdonald's marriage. She survived her husband and died in 1913. She also survived the destinees over named in her marriage contract, viz., Mrs Collie, Mrs Smith, and Mrs Johanna Macdonald. She left a testament in favour of two granddaughters of the said Mrs Smith.
A question has arisen between the heirs of ( a) Mrs Collie, ( b) Mrs Smith, and ( c) Mrs Macdonald on the one part, as second parties to the case, and the executors under the general testament of Mrs Louisa Macdonald on the other part, as third parties to the case, as to whether Mrs Louisa Macdonald's marriage contract or her testament is to rule the succession to the funds settled by her marriage contract. To determine this a Special Case has been presented in which the question of law is—“Do the funds in question fall to be paid ( a) to the parties of the second part, or ( b) to the parties of the third part? ”
One of Mrs Johanna Macdonald's children, and therefore one of her heirs, is Dr Donald Macdonald. Nothing is specially said about him in the Special Case, in which he is treated as a party of the second part along with his sisters, except that in 1904, when resident in Aberdeen, he assigned any interest he had in Mrs Louisa Macdonald's marriage-contract funds to trustees for the English and Scottish Law Life Assurance Association in security of advances. The trustees for the Association are made parties to the case along with the second parties in respect of their riding claim on Dr Macdonald's interest. But from the partibus appended to the Special Case it appears that Dr Macdonald was when the case was presented, and it is admitted is now, an inmate of a lunatic asylum. No notice of this was taken in the Special Case, which was presented just as if Dr Macdonald was sui juris and capax.
But the case having been so presented we are now asked by motion in the Single Bills, as if it were in ordinary course, to appoint a curator ad litem to Dr Macdonald (who, it is admitted, has not been cognosced, and to whom it is not proposed to apply for a curator in ordinary form). The application was supported on the strength of what was done by the Second Division in the case of Swan, 1912 S.C. 273, 49 S.L.R. 222. I respectfully think that the course taken by the Second Division in that case was inconsistent with the judgment of the same Court in the case of Mackenzie, 1908 S.C. 995, 45 S.L.R. 785, and the authorities on which that decision proceeded. Having regard to the circumstances that Dr Macdonald is only one of several children all in pari casu, and further, that he has assigned his interest in the succession to the English and Scottish Law Life Assurance Association, who are duly represented, I agree with your Lordship that we should refuse the application as unnecessary. There are sufficient contradictors without
Dr Macdonald; and the trustees will be sufficiently protected by the judgment in the case though Dr Macdonald he not a party to it, which, as at present advised, I must respectfully hold he is not. But regarding as I do the question as one of principle, if your Lordships found it necessary to proceed on precedent, I should have submitted that the matter called for reconsideration in conjunction with the Judges of the Second Division, and for these reasons—Special cases were introduced by the Court of Session Act 1868, section 63, and it is worth while to note the terms of that section. It says—“Where any parties interested, whether personally or in some fiduciary or official character, in the decision of a question of law shall be agreed upon the facts, and shall dispute only on the law applicable thereto,” it shall be competent for them, without raising action, or at any stage of an action, to present a case signed by their counsel “setting forth the facts upon which they are so agreed, and the question of law thence arising upon which they desire to obtain the opinion of the Court.” On such case they may obtain either the opinion of the Court merely (this in practice is never done) or an extractable judgment of the Court. It is also provided that a judgment in a special case may be taken for review to the House of Lords, but that such review may be excluded by consent of parties.
It is plainly evident that agreement is the basis of any such case. Hence the present case properly concludes, “This case adjusted and settled by us, counsel for the parties,” and accordingly bears the signatures of counsel. For such signatures counsel ex hypothesi hold the mandate of their clients, and a case so adjusted and signed forms, where judgment is asked, as binding a contract upon the parties to refer to the judgment of the Court, on an agreed—on state of facts, a definite question or questions of law, as any submission possibly could be. It is, in fact, a reference to the Court, with statutory provision for an extractable judgment. And one is at once led to ask two questions—First, who authorised Mr Arthur R. Brown, advocate, to sign on behalf of Dr Macdonald, and so to commit him to a reference; and second, what would be the effect of ex post facto appointing a curator ad litem to Dr Macdonald, even assuming the curator ad litem so appointed approved of and adopted the Special Case, as was done in Swan's case? I have myself at the outset difficulty in understanding how Mr Brown had any authority to sign the case, and equally, how such approval and adoption by a curator ad litem appointed ex post facto could make Dr Macdonald a party to an agreement to which it cannot possibly be contended that he is yet a party.
The question raised is not affected by the circumstance that in this particular case there are practically no facts, beyond the terms of two testamentary deeds, on which agreement is required. The question is a general one, applying equally to all special cases.
Page: 700↓
The difficulty which I have indicated above depends upon my conception of the functions and powers of a curator ad litem, as well as upon the recognised legal incapacity of his ward.
I cannot see that the appointment of a curator ad litem would be of any avail if the ward is not yet a party to the case, and it seems to me that a curator ad litem, if he approve and adopt the special case on behalf of the ward, would be without authority homologating an incomplete and invalid contract, and one which ex hypothesi cannot be homolgated by the act of the ward himself—that is, he would be without authority contracting on behalf of his ward. Now my conception of the function of a curator ad litem is that he is appointed to watch the interest of his ward in a particular litigation, and see that his case is properly conducted, but that he does not represent his ward and has no power to contract on his behalf. It is possibly a good test of the situation to ask, Could a curator ad litem effectually and irrevocably compromise his ward's case beyond redress? It is only another illustration of the situation which would be created by the appointment craved, to point out that the curator ad litem might find himself binding his ward to accept the judgment of this Court and renounce his right of appeal to the House of Lords, if that was the footing on which the case was presented, or might be prevented taking an appeal on behalf of his ward, though advised to do so, if the view expressed by Lord Dunedin in Crum Ewing's case, 1910 S.C. 484 and 994, 47 S.L.R. 439 and 876, is well founded, provided only this Court is unanimous and the curator ad litem is without funds to prosecute such an appeal.
I therefore desire respectfully to examine the judgment of the Second Division in the case of Swan ( supra), and the cases to which their Lordships were referred, and on which it must be assumed that they proceeded. These were Christie, 1873, 1 R. 237; Ross, 1877, 5 R. 182, 15 S.L.R. 109; Wallace, 1830, 9 S. 40; Mitchell, 1864, 3 M. 229; Walker, 1867, 5 M. 358; Anderson, 1871, 8 S.L.R. 325; Mackenzie, 1845, 7 D. 283; Rossie, 6 S.L.R. 357; Park, 1876, 3 R. 850, 13 S.L.R. 550; Crum Ewing ( supra); Scott, 1908 S.C. 1124, 45 S.L.R. 839.
On noting the cases cited it is at once apparent that the recent and important decision of the Second Division in Mackenzie's Trustees ( supra) was not brought under the notice of the Court, whose composition had almost entirely changed since 1908. This materially affects the authority of the procedure adopted in Swan's case, and relieves me of any hesitation in calling its propriety in question.
I think that it must be admitted that there is both absence of principle and inconsistency in much that has been said and done in the matter of actions both at the instance of and against parties under incapacity. I may have to make reference to some such cases. Personally I do not think that any different principle applies to them and to special cases. But so far as the practical question is concerned I confine myself for the present to procedure by special case. Until the special case is in Court, and the Court seised of it, it is not even suggested that a curator ad litem can be competently appointed. In all contested litigation by ordinary action there is in theory the contract of litiscontestation entered into, not at the first presentation of the case to the Court, but at a subsequent and definite point of procedure. In the matter of the special case, on the other hand, the question of contract arises sharply at a point before the case is presented to the Court at all, and affects the question of the competency of the special case itself the moment it is presented to the Court. To make a special case competent therefore there must be a complete and effective contract between the parties to it before the case comes into Court. If an essential party is incapax and is not represented by a legal guardian he cannot bind himself by the necessary contract to refer and a competent special case becomes impossible. If he is not an essential party—that is to say, if the same interest, as is the case here, is amply represented—there is no reason that I can see why a special case should not be presented by the other parties interested and be entertained by the Court. It is true the judgment will not be res judicata against the incapax, but that does not appear to me to be sufficient reason why others should not have their rights finally ascertained by this simple and inexpensive means, instead of by the multiplepoinding for which it was so frequently the convenient substitute. There is, as I have long thought, a superstition without foundation among practitioners that to make a special case competent, not merely every possible interest must be adequately represented, but every possible individual having such possible interest, in common with it does not matter how many others, must be a party. It is that superstition which I think has suggested application for the appointment of a curator ad litem, which I fully admit has occasionally been granted by the Court without, I think, adverting to the question of competency. I venture to repeat it—there must precede the presentation to the Court of a special case an agreement between the parties to it. To such an agreement a person incapax and unrepresented cannot himself be a party; he has not therefore competently come into Court; the jurisdiction of the Court is not competently appealed to by him, though the matter at issue may be one in which he is concerned; and the situation has not, I think, arisen in which the Court has either power or duty to protect him. If after the case is in Court, with the incapax nominally a party to it, the Court appoints a curator ad litem to him, who thereafter assumes to adopt on behalf of his ward the special case, what does that amount to? Why, as I have already indicated to the Court, assuming the power to appoint a curator to the incapax ad hunc effectum only, and on the motion of his adversary, who shall not merely see that his interest is properly attended to and his case properly pleaded, which is, I think,
Page: 701↓
As there has been assumed to be some grounds for saying that a practice has arisen of making such appointments, I shall now examine the traces which there are to be found of such in the books.
I may add in passing that I think some looseness of reasoning in the matter has arisen from the practice of always referring to the official as a curator ad litem and not regarding that in many cases he is really tutor ad litem.
In Christie ( supra) a curator ad litem was appointed to an orphan family ostensibly parties to a special case, one of whom was a minor and the rest pupils. This is said to have initiated a practice. The reporters must have thought so, or they would hardly have given their note of the case. But there is nothing to indicate that it received the consideration of the Court as it would have done had it been intended to initiate such practice.
But three years later a case occurred ( Park, supra) which required the question to be considered on principle, and which appears to me to destroy the case of Christie as an authority. The parties were Park's trustees, William Park, and the special tutors to William Park's children. Between each combination of two there were antagonistic interests. It so happened that the testator had made his trustees, what I may call for shortness, tutors ad hoc to W. Park's children. As Park's trustees they could not, having a conflicting interest, contract with themselves as tutors to W. Park's children, and the Court did not make the appointment of a special curator ad litem, but on the contrary refused to entertain the special case, Lord President Inglis, who had sat in Christie's case, adding this pertinent statement—“The effect of this special case, which is necessarily a contract, is to bind the pupil children through these tutors to a certain statement of facts. We cannot entertain a special case between parties who are not entitled to contract. If it is necessary to have the question decided at present the parties must resort to the ordinary form of a declarator.” I do not think that this statement can be gainsaid, and it appears to me to exactly cover the present case, for Dr Macdonald is at present in pari casu with a pupil who has no tutors.
The next case in order of date ( Ross, supra) bears to be distinguished, and to
an effect which shows that though a curator was appointed, the law of Park's case ( supra) was accepted.
X had provided by his settlement for the children of A B, who was alive. A B had children in minority and pupilarity, some born before and some after the death of X. The conflict of interest was between the ante nati and the post nati. The trustees of X and A B, who had himself no personal interest, acting as tutor and curator at law for both classes of his children, adjusted and presented a special case. The Court held that as the father A B was the legal curator of his minor child and the legal tutor of his pupil children, the case was competently presented. But as A B happened to be resident in New Zealand they thought it proper to appoint a curator ad litem to his children for the conduct of the case. The case of Christie, now said to have initiated a practice, was not adverted to, but that of Park was, and was on principle distinguished.
Among the cases cited in Swan's case the only one other bearing on a special case is that of Crum Ewing v. Bayley ( supra). The question at issue was one between the children and grandchildren of Mrs Bayley, who were the third, fourth, and fifth parties. I am not now in a position fully to explain the position of the repective parties; but I find that in my own opinion (p. 491) I state the case to involve the “demand of the grandchildren of Mrs Bayley that their immediate parents be put to their election whether they will abide by Mrs Bayley's deed of settlement as a whole, or if they reject,” &c., forfeit their right, &c. The fifth parties were grandchildren of Mrs Bayley and were in minority and pupilarity. From the words I have quoted it seems pretty clear that they had surviving parents, between whom and them there were conflicting interests in regard to the subject-matter of the case.
A case was presented to the Court for determination of the question at issue, to which the fifth parties were ostensibly parties, and I assume with their respective parents as their administrators-at-law. Having regard to the conflicting interests of the parent and children a motion was made after the case was in Court for the appointment of a curator ad litem to the fifth parties. Had the matter been considered and authorities referred to, it would, I think, have been apparent that on the authority of Park's case ( supra) before the Court—so far, at least, as the grandchildren in pupilarity were concerned.
But as one of the Court I can say that the only thing that was present to our minds was that the parents, though administrators-at-law, had a hostile interest to their children, and that therefore the latter's interest should be protected by the appointment of a curator ad litem, and this was made without any further reflection. I do not think that we adverted to the fact that some of them were minors and some in pupilarity, and were possibly misled by the common use of the term curator ad litem. In any view I question the competency of
Page: 702↓
Before leaving the case I must refer to a further passage in Lord Dunedin's opinion where it appears to me that he has inadvertently fallen into error and is in conflict with Lord President Inglis in Park's case ( supra) and with the judgment of the Second Division in Mackenzie's case ( supra). His Lordship says—“Had there been no such process as a special case, the parents, if they had raised the question by ordinary action in which the minor children were called as defenders and did not appear to defend, could only have got a decree in absence. The fact that there was such a process as a special case enabled the parents to get a decree in foro, because, having as guardians of their minor children compelled them to be parties to the special case, as soon as the dissentient interest emerged to the cognisance of the Court a curator ad litem was of course appointed. Accordingly I think it is not in the parents' mouths to complain if he is put in funds to fight the case to the end.” The dissentient interest of the parents only came to the cognisance of the Court when the case was presented. But it existed when the case was prepared, adjusted, and signed, and when therefore the contract which a special case imports was made. Having that hostile interest the parents were as much precluded from legally contracting both for and with their children, as they were precluded from prosecuting the special case after it was presented. Unless the authority of Park's case ( supra) is to be discarded the special case was incompetent ab initio and should have been refused.
The remaining cases cited to the Judges of the Second Division in Swan's case did not relate to special cases, and only indirectly touch the present question. But I think it right to refer to one of them, viz., Scott's case, as its procedure does not altogether conform to the decision in the subsequent case of Mackenzie ( supra). A deserted wife raised an action of divorce after her husband had become insane. Four years' desertion had elapsed before insanity intervened. On the raising of the action a curator ad litem was appointed to the husband, who had no curator bonis, and the action proceeded to determine in initialibus the very important question whether, as maintained by the curator ad litem, the action of divorce could not proceed after the insanity of the offending spouse, or whether, as maintained by the pursuer, the lapse of four years gave her an absolute right to divorce. The Court rejected the contention of the curator ad litem and sent the case to proof. This was tantamount to compelling a party who was non compos mentis to appear, with the effect of enabling the pursuer to obtain a judgment in foro and causa cognita.
Now this is exactly what in the case of Mackenzie ( supra) the same Division held that the Court could not competently do. But it must be noted that the appointment of a curator ad litem in Scott's case only appears narrative as an incident in the report. It received no special consideration, and no doubt it was made on an ex parte motion for the pursuer. At the same time it may fairly be referred to as a case of the appointment of a curator ad litem to a defender who could not be a party personally appearing in the case because he had no capacity to act, and who had not de facto appeared.
In Mackenzie's case ( supra), occurring some six months later, the matter was accidentally brought sharply before the same Division who made the appointment in Swan's case, and it became necessary to consider the question on principle. The action was a multiple poinding for distribution. Pupil and minor children were beneficially interested. For a considerable time after the action was initiated their father was alive, and therefore they had an administrator-at-law. During his life there was no appearance for the children, as their interest was sufficiently protected by the trustee on the estate. But in 1906 their father died without appointing tutors and curators to his children, and under emerging circumstances their interests (they were then minors) became more pronounced. In consequence the trustee, partly to relieve himself of responsibility, and partly in the interest, as he thought, of the minors, asked the Court to appoint a curator ad litem to them. I was myself the Lord Ordinary in the cause, but in consequence of my absence
Page: 703↓
In coming to the conclusion that a curator ad litem ought not to have been appointed I was led by the decision of the whole Court in the cases of Sinclair, 1828, 6 S. 336, and by the subsequent cases of M'Conochie, 1847, 9 D. 791, and Dingwall, 1871, 9 Macph. 582, 8 S.L.R. 385. The Second Division, after a full hearing of the matter, determined that the Court had no power to appoint a curator ad litem to a minor defender who was without a curator and who did not appear, and it follows, I think, a fortiori to a pupil defender without tutor, or to a defender non compos mentis without a curator bonis, neither of whom could appear on their own account.
If the judgment in Mackenzie's case was sound, it appears to me that its principle must apply mutatis mutandis in the matter of special cases, if indeed the principle ought not to apply a fortiori in that form of procedure, by reason of the presentation of a special case of necessity being preceded by an agreement. But taking it on a lower ground, what is a party to a special case whose interest in a trust fund is at stake but a defender and claimant in a conventional multiplepoinding?
I do not think that I can properly submit to the Court the propriety of having this matter dealt with on the first convenient occasion by an authoritative judgment without drawing attention to the fact that there is not wanting evidence of some inconsistency, if not of some confusion of mind, on the part of practitioners, and even on the part of the Court, regarding the whole matter of the initiation and defence of actions on behalf of parties who are not sui juris or are incapax. There are, in fact, signs that the “next friend” of English practice has sometimes been allowed, though without overt appearance or recognition, to bestir himself in Scottish litigation. There may be occasional cases where there might be some practical convenience in this, but how far it is necessary, or can be openly recognised on principle, is a different question.
That some confusion exists, even in the judicial mind, on the general aspect of the subject is, I think, evident from the leading case of Sinclair ( supra), on which the decision in Mackenzie's case largely proceeds.
In the end of the eighteenth century, after a charge and action of constitution, an action of adjudication was raised against Sinclair, a pupil without tutors. As was to be supposed, no appearance was made for him, and decree was obtained. A charter of adjudication was expede, titles were made up, possession followed, and the property passed through several hands. In due time a declarator of expiry of the legal was raised. The pupil having long since died, his sisters intervened, and having obtained themselves served heirs to his father and himself, raised an action of reduction of the decrees in absence and all that had followed upon them, on the ground that they had been obtained against a pupil without tutors, and without the appointment of a curator ad litem. The Lord Ordinary reduced. On a reclaiming petition the Second Division were equally divided on the question whether the decrees were null and void or only liable to be opened up as decrees in absence, and accordingly they directed the opinion of the other Judges to be taken on these questions—First, are the decrees in question and all that has followed on them funditus null and void? and if they are, ought the defender to be immediately decerned to remove? second, ought the decrees to be considered merely as decrees in absence? or third, ought they to be opened up, to the effect that the defender must, as in petitorio, instruct the debts for which the decree of constitution was taken, and cede possession on being paid the balance which on a fair accounting shall appear still due?
The nature of the case of course made the technical point of the most crucial importance. But its value as an authority on the question with which I am concerned arises from the line of argument necessarily pursued by the parties respectively. The pursuers of the reduction maintained that it was the duty of the pursuer of an action against a pupil to crave the appointment of a tutor ad litem, who might judge whether he would make compearance for the pupil, and that this course having been neglected in the case in question, the decrees were null. The argument in support of this contention is best found in the judgment of the four members of the Court who were in the minority.
They drew a proper distinction between the position of a minor and a pupil. The latter has no persona in law; he cannot act or pursue; even an action for his benefit being raised in the tutors' name qua tutors. The pupil cannot assent or dissent; he does nothing, everything being done in the name of his tutors. They then proceed; decrees in absence can proceed on one of two grounds alone, viz., that by not appearing the defender acknowledges the debt to be just;
Page: 704↓
It does not appear to me to follow in reason or in law that the practice described by the minority Judges is sound, and I have difficulty in regarding it as defensible, because, given that a pupil has no persona standi, that he can neither consent nor dissent, that everything must he done for him by his tutors and in their own name, how does it follow that a judge has either power or duty to appoint a tutor ad litem to supply the want of tutors where there is no lis pendens, as there cannot be until the defender enters appearance and joins issue, or that a tutor ad litem if appointed has the power to act as if he were a tutor at law against whom the action had been served. It has never, so far as I know, been supposed that a tutor ad litem can act for the pupil so as to bind him; that when appointed he becomes a party to the case; that on his intervention decree can go out against him, as it would against a tutor-at-law, which will bind the pupil. A little reflection will, I think, show that there is really no such thing known to the law of Scotland as a tutor ad litem; the phrase is curator ad litem, and not merely the phrase but what the phrase conveys is inapplicable to the case of a pupil.
The defenders in the case of Sinclair maintained, on the other hand, that the course appointed by law for bringing a pupil into Court was to serve on himself and his tutors if known personally, or, if not known, to serve on himself personally, and edictally on his tutors if he any has; that on such service a decree would be obtained which, though it might be in absence, and would not therefore create a res judicata, would be equally valid with any other decree in absence; that the course appointed by law for calling tutors into the field had in the case in question been complied with, and that it was incompetent for the Court to appoint a curator or rather tutor ad litem till there was actually a lis subsisting by appearance of the party.
The majority of the Court (ten to four, or including the Lord Ordinary eleven to four) endorsed this contention, and particularly the latter part, viz., that it was incompetent for the Court to appoint a tutor ad litem until there was a subsisting lis by appearance of the defender, and that where he is suing a pupil who has no tutors or whose tutors do not appear “the pursuer has no remedy but to take decree ( i.e., decree in absence) valeat quantum.” Hence they held that the decrees in question must be treated as decrees in absence. But while so deciding, and establishing the law as afterwards applied in Mackenzie's case ( supra), the judges in the majority do two things which I think justify my suggestion above that there is a good deal of confusion of mind on this whole subject, even on the Bench. They first assume that a curator ad litem when first appointed to a defender is necessarily the nominee of the pursuer and under his influence, which is certainly not the case nowadays, and I should doubt if it ever was, and they give this as a reason, as unnecessary as it is fallacious, for the Court not interposing to make the appointment; and second, having accurately stated the law and practice as to citing a pupil with or without known tutors, they launch into a distinction between what is expedient and prudent and what is legal, which involves an obiter dictum which I cannot think as sound, and was certainly not necessary for their judgment. They say:—“No prudent man, who is either called into Court by a pupil or minor, or who calls such as a defender, but will take care that such party is properly authorised, so that the proceedings may not be afterwards subjected to challenge.” Confusion is introduced by attempting to speak comprehensively
Page: 705↓
It may be said that though inconsistent with principle the Court has in the interest of pupils without tutors condoned irregularity, and finding a nominal pursuer before them have turned a blind eye to the fact that he is a pupil, who cannot effectively raise an action by himself, and have accordingly assumed that there is a process and, on the defender appearing, a lis, and finding the nominal pursuer to be a pupil have protected him by the appointment of a tutor ad litem, and so glossed over an irregularity. If so, I question whether the irregularity is not an incompetency. But I cannot think that the Court has ever tota re perspecta sanctioned this course. The “next friend” may be recognised in England. But he must come within a certain category. And he assumes certain responsibilities. But there is no such recognition in Scotland.
The result, which the passage I have quoted contemplates, might be arrived at on the intervention of an irresponsible nobody who chose to interfere in the pupil's affairs, or who did so in private concert with the defender.
I demur further to there being any necessity for the tacit acceptance of the course of practice indicated in the interest either of the pupil pursuer or of the pupil defender. If he has rights to vindicate or to protect which require immediate action to be taken, and has no tutors, there is such a thing as a factor loco tutoris known to the law, and the application for such an appointment is not subject to the same objections as that for the appointment of a tutor ad litem. A factor loco tutoris represents the pupil as a tutor, and has not merely the functions of curator ad litem.
The whole Court case of Sinclair ( supra), though I have thought it proper to deal with it thus at length, reduces to this short proposition, viz., that before there can be a curator ad litem appointed there must be a pending lis, and where a pupil is either nominally pursuer or is called as defender, and has no tutors or his tutors do not appear, there can be no pending lis, and therefore there can be no tutors ad litem. And that was the principle, apparently somewhat forgotten in the interim, which was brought back again, and re-applied 80 years afterwards in Mackenzie's case ( supra).
The report in Sinclair's case ( supra) is somewhat faulty in respect that it does not indicate the answer of the consulted Judges to the third query put to them, or show what position the Court considered the parties must hold towards the decree in absence, but the judgment was followed in the same year in the case of Dick v. M'Ilwham, 1828, 6 S. 798, and 1829, 7 S. 364, where a decree of irritancy of a contract of sale was obtained, after erection of buildings on the subjects, against, inter alios, a pupil without tutors. In a reduction raised by the pupil on attaining majority, the Court held that he was “entitled to be reponed against the decreet of irritancy … in the same way as if the same had been ex facie a decreet in absence, and that all parties should be restored to the state at which they stood at the time the decreet was pronounced.”
I give the following note of three or four other cases bearing on the subject:—1. Wallace, 1830, 9 S. 40. The Court refused to appoint a curator ad litem to a party fatuous, when action not yet raised. The report does not make it clear whether the lunatic would have been pursuer or defender. 2. Mackenzie, 1846, 8 D. 964. Father died leaving a pupil son, Sir Kenneth Mackenzie, of his first marriage, and a widow and her pupil son, Osgood Mackenzie, of his second marriage. Action was raised by the tutor of Osgood Mackenzie and the trustees of his father's and mother's marriage contract against the tutors of Sir Kenneth. After the Lord Ordinary had pronounced judgment, and Sir Kenneth had become a minor pubes,
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I cannot conceal that I have myself, having been brought in contact with the question as counsel and judge from Studd's case onwards, come to hold the opinion that there is something not merely anomalous, but radically inconsistent in our law and practice in this matter, and I submit to your Lordship the propriety of having it practically reconsidered when occasion occurs. It may be that the correction of the inconsistency and the bringing the law and practice as regards pupils in line with that as regards minors may best be attained by raising the tutor ad litem into the position of a factor loco tutoris ad hoc, though the question would then arise, have the Court ex nobili officio power to do so.
The Court refused the motion.
Counsel for the First and Second Parties— A. R. Brown. Agents— Alex. Morison & Company, W.S.
