Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 FACTOR LOCO TUTORIS.

Thomas Rattray, Factor on the Estate of the Heir of James Paterson, Staymaker in India, Petitioner

Date: 10 August 1776

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A factor upon the estate of a person in India, nominated in consequence of the Act of Sederunt 1730, applied to the Court for authority to repair a dam-head and mill-lead which, as he set forth, was of great consequence to be done immediately. A doubt occurred, how far it was proper for the Court to give directions in that matter, or to do with respect to factors loco tutoris as they do as to factors on sequestrated estates. The last are in manibus curiæ, and therefore the Court must interpose in directing the management of them; but the first are not. A factor loco tutoris is appointed by an exertion of the no-bile officium, periculo petentis: the powers of the factor are ascertained by Act of Sederunt, and as tutor, by common law; and he must act at his peril. The subject is not in Court: the factor clears out of Court, nay, the factory itself is at an end by the proprietor’s returning to the country, or proper powers for management being received from him. The decision in the case of Mr Craigie, factor loco tutoris on the estate of Buccleugh, is a decision not approved, and not to be followed. The Lords demurred; but they remitted the petition to an Ordinary to inquire into the facts, and also into the practice of the Court, and to report. Upon report of the Ordinary, 10th August 1776, the Lords resumed consideration of the petition. The facts were true, and the work craved to be authorised highly proper and expedient. But the Lords made a great distinction betwixt estates sequestrated and in manibus curiæ, and those under the management of factors of this kind: they refused to interpose, leaving the factor to act as he thought most for the advantage of the estate under his management.

They did the same, 16th January 1778, in a petition of Robert Donaldson, writer, factor loco tutoris to the heir of George Wilson Mason, craving liberty to set tacks beyond the minority and the term limited by Act of Sederunt 1730. The term craved was 21 years. The Lords left him to act, cum periculo as he should be advised.

Wotherspoon having disponed his estate to certain trustees, for behoof of two sisters and their minor children, with legacies to several other persons; he named the trustees also tutors and curators to the children, freeing them from omissions or being liable in solidum. Upon a complaint against them, on the statute 1696, c. 8, (see Summary Application,) they were removed by the Court, as suspected tutors, and discharged from further administration of the minors' effects. Whereupon all interested again petitioned the Court, (December 1775,) that they would, ex nobili officio, appoint another trustee to denude the former, and bring them to account. “The Court declined to do this, but they nominated a person factor loco tutoris, on the subjects mentioned, with the usual powers; and specially with power to bring a proper process, if he should be advised that the same was necessary for denuding the trustees.”—(See Nobile Officium.)