Scottish Court of Session Decisions

On 15th March 1894 John Burns, an unskilled labourer in the employment of Howard, Baker & Company, contractors for the construction of a new railway, lost his eyesight and was otherwise seriously injured by reason of the explosion of a dynamite cartridge among debris being removed by him. On 27th April he became insane.

On 13th September 1894 Robert John Calver, S.S.C., Edinburgh, was appointed curator bonis to John Burns by the Sheriff-Substitute of the Lothians and Peebles.

On 14th September Mr Calver, as curator bonis to John Burns, raised an action in the Sheriff Court at Kirkcaldy against Howard, Baker & Company for payment of £1000 as damages and solatium at common law, or alternatively, for payment of £163, 16s. as compensation under the Employers Liability Act 1880.

The defenders lodged answers averring, inter alia, “The pursuer has neither found caution nor obtained an extract of his appointment, and he has no title to sue the present action.”

They pleaded—“(1) No title to sue.”

On 22nd September Mr Calver found caution for his intromissions as curator bonis and extracted his appointment.

By section 6 of the Act of Sederunt of 14th January 1881 for regulating the appointments of judicial factors in the Sheriff Courts of Scotland, it is provided, “No factor shall be entitled to act until he has obtained extract.”

Section 4 of the Employers Liability Act 1880 (43 and 44 Vict. cap. 42) enacts — “An action for the recovery under this Act of compensation for an injury shall not be maintainable unless … the action is commenced within six months from the occurrence of the accident causing the injury.” …

On 11th October 1894 the Sheriff-Substitute ( Gillespie) repelled the defenders first plea-in-law, and allowed a proof.

“Note.—The defenders' first plea is not of a kind which now finds much favour. The tendency of modern practice, contrary to the older and stricter rule, is to allow a title to be completed pendente processu. Malcolm v. Dick, 5 Macph. 18, cited by the defenders' agent, is not in point, for the action in that case was raised and decree obtained by a person suing as executor, who as next-of-kin had merely the possibility of being decerned executor. The position of the present pursuer, when he raised this action before he found caution and extracted his appointment, was much nearer that of an executor decerned but not confirmed.”

The pursuer appealed for jury trial.

The defender moved the Court to hold the action incompetent, and argued—The pursuer had no title to sue at the date when the action was commenced, as he had neither found caution nor extracted his decree—Pupils Protection Act 1849 (12 and 13 Vict. cap. 51), sec. 2; Judicial Factors

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Act 1880 (43 and 44 Vict. cap. 4), sec. 4, sub-sec. 4; Act of Sederunt, 14th January 1881, sec. 6. This authority was conferred by the extracted decree, and his warrant took effect only from the date of extract—Bell's Prin. 2116. He required to have an active title prior to the date of compearance— Stair, iv. 38, 18. An action raised by a factor before he found caution fell to be dismissed de quod non satisdedit — Tutor of Congilton v. The Lady, 1550, M. 16, 222. Parties paying money to a factor who had not extracted his decree of appointment were liable in a second payment if the money was lost— Donaldson v. Kennedy, June 18, 1833, 11 S. 740. A curator bonis who had not found caution was in a very different position from an executor-dative who had been decerned but not confirmed. The appointment of a curator bonis was a purely statutory appointment, and must be governed absolutely by the terms of the statute.

Argued for pursuer—He had a title to sue. He had a decree of appointment when the action was brought, and this decree had been extracted in due course. No objection could be taken to his title except under section 6 of the Act of Sederunt. This was not a statutory provision, but a rule laid down by the Court, and which the Court in exceptional circumstances could set aside. It would be a very hard thing if a provision in an Act of Sederunt was to deprive the ward of his remedy. The result of dismissing the present action would be this, that the insane ward would be deprived of all right of compensation under the Employers Liability Act, because the six months within which an action under that statute must be raised had expired on 15th September. The Court had a discretion as to whether they would enforce the penal provisions of an Act of Sederunt, and the equity of this case was against their doing so— Boyd, Gilmour, & Company v. South-Western Railway Company, November 16, 1888, 16 R, 104, opinion of Lord Young, p. 109.

At advising—