Alexander Scot, W.S. - Lord Advocate (Jeffrey - Knight v. James Stewart and Curators - Dr. Lushington [1834] UKHL 7_WS_211

UKHL
Alexander Scot, W.S. - Lord Advocate (Jeffrey - Knight v. James Stewart and Curators - Dr. Lushington
[1834] UKHL 7_WS_211 · 1834-04-07
A gift of tutory dative was made in favour of three persons, without the specification of any quorum, or provision in favour of survivors; and the tutors appointed one of their number to be their factor, for whose intromissions a party became cautioner; and thereafter one of the tutors died: Held (reversing the judgment of the Court of Session), that the office of tutory terminated by the death of the tutor, that consequently the factory came to an end, and that the cautioner thenceforth was free from his obligation.James Stewart of Brugh died intestate in March 1811, leaving the respondent, an only child, in infancy, and without tutors or curators. On the 2d of June 1814 a gift of tutory was obtained from Exchequer in favour of Mrs. Stewart, the respondent's mother, Thomas Strong, merchant in Leith, and Alexander Stevenson, writer in Edinburgh. The gift was in these terms:—omnium et singularum terrarum suarum, hæreditatum, possessionum, bonorumque omnium, mobilium et immobilium, usque ad ejus legitimam ætatem pervenerit, proviso tamen quod dicta Magistra Mariona Stewart, Thomas Strong, et Alexander Stevenson, faciant et perimpleant dicto Jacobo Stewart omnia et singula quae tutor dativus de jure, seu regni nostri consuetudine, facere et perimplere tenetur. Et cum ad ipsius legitimam ætatem pervenerit, sibi et propinquioribus suis amicis, de dictis terris, firmis, reditibus, et bonis fidelem computum et ratiocinium reddant.”
“Nos fecimus, constituimus, et ordinamus dilectos nostros Magistram Marionam Stewart, Thomam Strong, et Alexandrum Stevenson, tutores dativos dicti Jacobi Stewart, ac administrators

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A bond of caution was granted at the same time by the tutors and by Baikie, in these terms:—the said tutors, shall give up inventories of the said pupil, his whole means and effects, both heritable and moveable, conform to and in terms of the act of parliament made thereanent, and that under the penalty of 200 l . sterling, over and above performance. And we, the said tutors, bind and oblige us and our foresaids, jointly and severally, to free and relieve the said James Baikie, and his foresaids, of his cautionary for us in the premises, and of all damages and expenses he may sustain there through in any manner of way whatsoever.”
“We, Mrs. Marion Stewart, otherwise Strong, relict of the deceased James Stewart, last of Brugh, Thomas Strong, merchant in Leith, and Alexander Stevenson, writer in Edinburgh, as principals, and with and for us, James Baikie, Esq., of Tankerness, as cautioner in manner and to the effect after mentioned, considering that his Majesty, with the advice and consent of the Right Honourable the Barons of his Court of Exchequer in Scotland, hath by gift, &c.: Wit ye us, therefore, to be bound and obliged, as we the said Mrs. Marion Stewart, otherwise Strong, Thomas Strong, and Alexander Stevenson, as principals, and I, the said James Baikie, as cautioner, bind and oblige ourselves, conjunctly and severally, and our heirs, executors, and successors, to make just compt, reckoning, and payment to the said pupil, when he shall arrive at the age prescribed by law, of all intromissions, omissions, commissions, and acts of management had by us, the said tutors, under and by virtue of the said gift as accords of the law; and that we,

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The management of the estate was intrusted to Stevenson, who intromitted till 1819 without having any written deed of factory. On the 12th of April of that year a factory was granted to him in these terms:committing to him full power, warrant, and commission for us and in our names to manage, transact, and conduct all the affairs and concerns of the said James Stewart, our pupil, as fully, freely, and completely in all respects as any other commissioner, factor, cashier, or agent named with the most ample powers could do in the like cases; and particularly, without prejudice to this general commission, with full power to our said commissioner to superintend the management of the whole affairs and concerns of the estates in Orkney and Shetland, belonging to the said James Stewart, and of any other lands or heritages which he may acquire or succeed to in time coming; as also, with power to sell and dispose of the whole kelp,” &c.; “as also, for us and in our name, as tutors foresaid, to demand, uplift, receive, and, if necessary, pursue for all debts and sums of money (exclusive of principal sums lent out on bond) due or to become due to the said James Stewart, now of Brugh, or to us as his tutors, by any person or persons, receipts, discharges, and acquittances therefor, or conveyances thereof to grant, which shall be equally effectual as if subscribed by ourselves; as also with power to disburse and lay out such sum or sums of money as may be found necessary for the aliment, education, or expenses of the said pupil, or in the management of his estate and affairs; as also with power to settle and clear accounts with Mr. George Turnbull, present factor on the estate of Brugh, or with any other factor or factors to be employed by us in Orkney in the management of the lands and estate belonging to the said pupil, or in any part of the affairs of the said James Stewart connected therewith, and to discharge the said factor or factors of their intromissions and management, upon receiving payment of the balances that may be found due by them; as also with power to our said commissioner to pursue in our names, as tutors foresaid, all such actions as may be judged necessary in the management and execution of the said pupil's affairs, and to defend us and him in all actions that may be brought against us as tutors foresaid, or against the said pupil, and in general to do every thing in execution of the powers hereby committed to him that we could do ourselves if personally present; ratifying hereby and confirming all and whatsoever acts and deeds our said commissioner shall lawfully do or cause to be done in the premises: but providing always, as it is hereby specially provided and declared, that the said Alexander Stevenson shall, by acceptance hereof, be bound and obliged to hold just compt, reckoning, and payment to us or our quorum, for his whole intromissions by virtue hereof after deduction always of his necessary disbursements, charges, and expenses in the execution hereof, with a reasonable gratification for his own trouble therein; declaring the said Alexander Stevenson's acceptance hereof shall not hurt or prejudge his right as one of the tutors of the said James Stewart, and that this commission shall subsist until recalled in proper form.”
“We, Mrs. Marion Strong, otherwise Stewart, and Thomas Strong, merchant in Leith, two of the tutors dative of James Stewart, now of Brugh, only son and heir of entail of the deceased James Stewart, Esq., last of Brugh, conform to gift of tutory in favour of us and Alexander Stevenson, writer in Edinburgh, dated the 2d day of June 1814 years, considering that the said Alexander Stevenson has hitherto acted as our commissioner, factor, and cashier in the management of the said pupil's affairs, and that it is necessary for us to confirm his appointment by a regular commission with the usual powers, and having full confidence in the integrity and ability of the said Alexander Stevenson for that purpose; therefore we do, by these presents, nominate, constitute, and appoint the said Alexander Stevenson to be our commissioner, factor, cashier, and agent for the purposes after mentioned, giving, granting, and

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On the same day a bond of caution was granted by Stevenson, and Alexander Scot, W.S., his partner in business, which, after narrating that Mrs. Stewart and Mr. Strong, “tutors dative of James Stewart,” &c. had appointed Stevenson to be their commissioner, factor,

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“Therefore I, the said Alexander Stevenson, as principal, and Alexander Scot, writer to the signet, as cautioner and surety with and for me, do hereby bind and oblige ourselves, conjunctly and severally, and our heirs, executors, and successors whomsoever, that I, the said Alexander Stevenson, shall hold just compt and reckoning with the said tutors, or any person appointed by them, not only for my whole actings, management, and intromissions whatsoever already had by me with the estate, funds, and effects of the said James Stewart as one of and as acting for the other tutors dative since the date of the said gift of tutory dative, but also for my whole actings, management, and intromissions whatsoever to be had by me in virtue of the before-mentioned commission and factory, or as their factor, cashier, or agent in any manner or way, and that I shall submit to the said tutors, for their examination and satisfaction, my accounts yearly, or so often as I shall be required by them so to do; and that I, the said Alexander Stevenson, shall make payment to the said tutors of all sums of money which I shall uplift and receive in virtue of the said factory and commission, or the balance that may remain due thereon at the time, and that under the penalty of 100 l . sterling, over and above payment and performance; and I, the said Alexander Stevenson, bind and oblige myself and my foresaids to free and relieve, and harmless keep, the said Alexander Scot and his foresaids from his cautionary obligation above written, and of all costs, skaith, damage, and expenses which he may any ways sustain or be put to by his becoming caution for me in manner foresaid.”

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Strong died in August 1820, and Stevenson continued to intromit as formerly. Baikie, the cautioner for the tutors, raised an action in 1823, before the Court of Session, against Mrs. Stewart and Stevenson, the representatives of Strong, and against the pupil and his tutors and curators generally, concluding for exoneration from the bond of caution. Stevenson and Mrs. Stewart lodged defences. Decree was pronounced, the extract of which was of the following tenor:—
“After sundry steps of procedure had taken place in said action before the Lord Cringletie, Ordinary thereto, his Lordship, upon the 3d day of June 1823, found that the respondent's bond of caution ceased, and was at an end at the death of Mr. Thomas Strong in August 1820; and ordained the defenders to give in a state of their accounts up to Mr. Strong's death, and that against the then next calling.”
The extract farther bore, that after a remit to an accountant, who made a report in January 1826, finding that a balance was due to Stevenson at the death of Strong, the Lord Ordinary, and by him the Court, “exonered and discharged, and hereby exoner and discharge, the pursuer, James Baikie of Tankerness, of the cautionary obligation undertaken by him for the defender.” The balance due to Stevenson, as in August 1820, was said to exceed 300 l .Stevenson continued to act as formerly, and it was alleged that between August 1820 and February 1825 he had intromitted to an extent which left him indebted to the estate in upwards of 2,000 l .The pupilarity of the appellant having terminated on the 23d of that month, he made choice of curators, and

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Mr. Baikie maintained, in defence, that the tutory fell by the death of Mr. Strong, and that consequently the bond of caution then terminated.The case came before Lord Newton as Ordinary, who reported it to the Court; and their Lordships, considering the question attended with difficulty, transmitted the following query for the opinions of the other judges:—

“Whether the tutory in this case fell by the death of Mr. Strong?”

A note was thereafter sent to the Court by the consulted Judges, stating, “that before giving an opinion on the question submitted to them in the case of Baikie v. Stewart and others, they were desirous of obtaining information with regard to the practice of the Court of Exchequer, both as to the particular terms on which gifts of tutory have been granted, where more than one person is nominated, and whether, where a plurality have been appointed, applications for new appointments have

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the tutors observing the rules and directions of the statute 28th June 1672. A case of this last kind took place in Whitsunday term last. Henry Jardine , King's Remembrancer.”
“There was laid before the King's Remembrancer a remit from the Court of Session, requesting him to make a return or report on a note with regard to the practice of the Court of Exchequer, both as to the particular terms in which gifts of tutory have been granted, where more than one person is nominated; and whether, where a plurality have been appointed, applications for new appointments have been made in consequence of death or other incapacity. The Remembrancer begs to observe, 1st, That tutory datives and curatory datives, where more than one person is nominated, generally, but not always, specify a quorum, and it is the practice, when the number of the quorum is reduced by death, to apply for a new gift. An instance of this kind took place in the year 1806; but the records of this Court, in so far as I can discover, do not afford an instance where a gift of tutory granted to more persons than one, and where, by the terms of the gift, the nomination is neither jointly nor to a quorum of the Barons having been applied to for a renewed gift in consequence of the incapacity or death of one or more of the tutors first named. 2. When a gift is granted to two persons jointly, and one of them dies or refuses to act, or in the case of a lady afterwards marrying, by which she becomes in law incapacitated, a new gift becomes necessary, and would be granted upon

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On considering this report, Lord Corehouse returned an opinion in these terms:—

“I am of opinion that the tutory dative did not fall by the death of Mr. Strong. The authority of Lord Stair and Lord Bankton upon the subject is express, and the return of the King's Remembrancer seems to be sufficient evidence that that authority has been uniformly acted upon.”
Lords Justice Clerk, Glenlee, Pitmilly, Alloway, Meadowbank, Mackenzie, Newton, and Medwyn stated, “We are entirely of the same opinion with Lord Corehouse.” Lord Cringletie subjoined, “In consequence of the practice as reported by the proper officer of the Exchequer, I am also of opinion that the tutory did not fall by the death of Mr. Strong.” When these opinions were laid before the Court, along with the report of the King's Remembrancer, a motion was made on the part of Mr. Baikie for a more particular investigation as to the practice, which, it was alleged, was not accurately stated in the report. The Court (28th January 1829) refused this motion, for the reasons set forth in the following interlocutor, and in which they also gave judgment on the merits. *
“The Lords, upon the report of Lord Newton, and having advised the mutual revised cases for the parties, and consulted with the Judges of the Second Division and the permanent Lords Ordinary, and heard counsel for the parties on the objection stated

Footnote

* 7 S. & D., 333.

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Thereafter their Lordships remitted the case to Lord Newton to hear parties farther on the remaining points in the cause.In the meanwhile the respondent and his curators, founding on the deed of factory and the relative bond of caution, raised an action against Stevenson (who had now become bankrupt), and also against his cautioner, the appellant, Scot, concluding for an account of the whole intromissions of Stevenson, from the commencement of the tutory till the expiry of the pupilarity, and for decree

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In this action Lord Eldin, on 29th June 1827, “found the defender, Alexander Scot, liable for the balance of the intromissions of Alexander Stevenson under the factory in question,” &c.; but Scot having reclaimed, and before his reclaiming note was advised, the Court, having pronounced the judgment already quoted in the relative action against Baikie, remitted this cause also to the Lord Ordinary, “ob contingentiam, with power to hear parties as to the consequences which ought to follow from the judgment pronounced by the Court in the case at the instance of Stewart v. Baikie , and to proceed farther,” &c. The case against Stevenson and Scot having been argued before Lord Fullerton, he appointed the parties to give in Cases to himself, and issued this note:—
“After the full discussion which the case has received, it is with great reluctance that the Lord Ordinary issues the above order. But, upon a full consideration of the whole circumstances, he foresees the possibility of great inconvenience, and even injustice, in separating entirely the present case from that depending between the same pursuers and Mr. Baikie, the cautioner for the tutors, which has not been argued before him, and which must now, in all probability, fall to be decided by another Judge.
It is due to the parties, however, to state the view entertained by him on the points in dispute. If the factory had been granted to a third party by two tutors in their tutorial character, with the implied sanction of the remaining tutor, and had thus been a proper tutorial act, the judgment of the Court,

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In regard to the first of these points, the Lord Ordinary, though with some hesitation, inclines to the opinion that the commission may be held in consequence of the peculiar nature of the appointment of the tutors, as ascertained by the judgment of the Court, to have been granted by the two tutors and the survivor of them, and therefore did not fall by the death of Mr. Strong. The second question is attended perhaps with still more difficulty. The cautioner is bound for Mr. Stevenson's intromissions in virtue of the commission and factory, or as the factor, cashier, or agent of the two tutors who granted the factory. But Mr. Stevenson being also a tutor himself, and whose power in that character was expressly saved in that commission and factory, had a right to intromit as tutor, which circumstances raise the question, whether any, or which, of his intromissions are to be held as intromissions in virtue of the factory, for which intromissions alone the cautioner was bound?

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The Cases having come before Lord Moncreiff, he reported them, and also Cases in the question with Baikie, to the Court, and at the same time issued this note:—
“The Lord Ordinary regrets that, in this very difficult case, he has not had the benefit of a debate. It

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The points in the case of Baikie are these:—

1. Is the judgment of the Court, reducing the decree of exoneration to the effect of finding that the tutory did not fall by Mr. Strong's death, conclusive against its operation as a release to Mr. Baikie?2. If it is not, is that decree res judicata as to the termination of Mr. Baikie's obligation as cautioner, either at the death of Mr. Strong, or at the date of the summons? The Lord Ordinary thinks that it is not res judicata; 1st, because the judgment may have depended on the point on which the Court has already reduced it; and 2d, because, though by that decision it is settled that the pupil was not without tutors, those tutors were the very persons for whom Mr. Baikie was cautioner; and therefore a tutor ad litem was indispensable.3. Did Mr. Baikie's obligation fall by the death of Mr. Strong? The Lord Ordinary thinks that there is much greater difficulty in this point than the pursuer is willing to allow. It is finally settled that the tutory did not fall; but the very peculiar terms of

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4. Supposing that the cautioner's obligation did not fall, is Mr. Baikie liable for the intromissions of Mr. Stevenson as factor? The Lord Ordinary thinks, that he is; because, though Mr. Stevenson received the money as factor, yet being tutor also, as soon as he had it in his hands, he was bound, both as tutor and factor, to account for it and pay it to the minor.If it should be found that Mr. Baikie is released, the action against Mr. Scot will be of great importance to Mr. Stewart. But if Mr. Baikie should be found still liable, the interest will lie chiefly between him and Mr. Scot. The Lord Ordinary, therefore, allowed Mr. Baikie to see Mr. Scot's paper, and to put in an argument in that view.

The points in Stewart v. Scot are these:—

1. Whether the pursuer has a title to found upon Mr. Scot's bond of caution? The Lord Ordinary

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2. Whether the factory fell by Mr. Strong's death?This is a question of difficulty, and not absolutely resolved by the judgment finding the tutory to subsist; for the factory being to one of the tutors, it cannot be held that it was so a tutorial act that it must have subsisted as long as the tutory. If Mrs. Stewart had died, it could not have stood, the factor being himself sole tutor. The question, therefore, is, whether, as a mandate (clearly different from contracts of lease, loan, &c.), it fell by the death of one of the grantors necessary to its constitution, or, as a tutorial act, subsisted as long as the nature of the tutory admitted of it. The point is far from being clear; but the Lord Ordinary is inclined to think that it did subsist.3. Whether, if the factory fell, Mr. Scot is liable for Mr. Stevenson's intromissions, either as tutor or agent? The question whether he would be liable on the ground of Mr. Stevenson having acted as agent, is not precisely argued by the defender, and is not

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4. Supposing that the factory did not fall, did Mr. Scot's obligation as cautioner fall by Mr. Strong's death?This seems to be the most important question in the cause, and it is certainly attended with difficulty. There is nothing in the bond to settle it. Mr. Scot, though bound conjunctly and severally with Mr. Stevenson, is so bound expressly as cautioner; and it is no solution of the point to say, that if Stevenson was liable, Scot is liable: Stevenson must have been liable in every event. But the question whether the cautioner's obligations subsisted to cover intromissions, had after the death of one of those to whom it was given, must depend on other principles. The cases quoted by the defender are evidently of importance, and some of them come very near to the point. And again, it would be difficult or impossible to say that the cautioner would have continued bound if Stevenson had become the sole tutor. On the other side, if the tutory and the factory both subsisted, and if the bond of caution be held to have been taken for the pupil's benefit, and to be available to Mr. Baikie, it is not easy to hold the tutorial act of taking it as having become ineffectual de futuro, by the death of one of the tutors. The Lord Ordinary has not a very decided opinion on this question. He has not been able

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5. Whether, if the factory subsisted, all the intromissions of Mr. Stevenson must be considered as falling under it? If special facts to the contrary were condescended on, this might raise such a difficulty as that suggested by Lord Fullerton; but the Lord Ordinary does not think that it could be maintained as matter of presumption, that money uplifted by the factor was not uplifted in that character, but as one of two tutors.”When the Cases came before the Court a motion was again made, on the part of the appellant, for a further inquiry in regard to the practice, but this was refused as being too late. *

Footnote

* The appellant, in his appeal case, averred, that the record of signatures in Exchequer was destroyed by a fire in 1811; that the report of the Remembrancer “was framed from a mere recollection or impression as to the practice, not from the actual examination of any record;” and in particular, that it “was not made from any examination of the records of “Chancery in Scotland.” He farther alleged, that he himself had searched the latter records from 1st June 1808 to 3d July 1828, and that the following was the result;—Tutories dative.

There are on record

62

Of these taken to one tutor

24

Remaining appointments to more than one

381. Of these taken to A., B., C., and the survivors or survivor, there are82. To A., B., C., & D., and a certain number as a quorum.53. To A., B., C., & D., or the survivors or survivor of them, and a certain number as a quorum164. To B. & C. jointly—15. To A., B., & C., as in the present case, and including that gift838He farther stated that there was no evidence that in any of these cases a failure of any of the nominees arose from death.

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Their Lordships (29th February 1832) pronounced this interlocutor in the case against the appellant:—
“Find the defender Alexander Scot liable as cautioner for Alexander Stevenson, factor, appointed by the tutors dative of the pursuer, for all the acts and intromissions of the said Alexander Stevenson as factor foresaid: Find him also bound to relieve James Baikie, the cautioner for the tutors dative, of all responsibility falling upon him on account of the sail factor's intromissions; and remit to the Lord Ordinary to proceed farther in the cause as to him shall appear just: Find the pursuer entitled to expenses,”&c.
In the case against Mr. Baikie the following interlocutor was at the same time pronounced:—
“Find the defender liable, as cautioner for the tutors dative of the pursuer, for the whole intromissions of the said tutors, and of their factor, Alexander Stevenson; but find the said defender, James Baikie, (in so far as he may be made liable for the intromissions of the said Alexander Stevenson, as factor named by the said tutors,) entitled to relief against Alexander Scot, who became bound as cautioner for the said factor's intromissions, and remit the cause to the Lord Ordinary to proceed farther in the cause as to him shall seem just: Find the pursuer entitled to expenses,” &c. *
Mr. Scot appealed.Appellant .—1. Where there is a gift of tutory to three individuals together, and no survivorship is expressed, the gift falls by the death of any one of them.

Footnote

* 10 S. & D., p. 392.

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2. But, independent of the more general plea that the

Footnote

* Ersk., b. iii. tit. 3. see. 34, 40.† Ersk., b. i. tit. 7. sec. 30.‡ 1 Stair, 6, 14.§ 1 Bankton, 7, 20.|| Bradshaw v. Bradshaw , 15th June 1826, Russell's Reports.

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3. Although there is no action of relief by Mr. Baikie against the appellant, yet the Court of Session have ordained the appellant to relieve that gentleman of his cautionary obligation to the tutors, which was incompetent.Respondent .—1. The decision in the question with Mr. Baikie is conclusive as to the subsistence of the tutory, notwithstanding the death of Mr. Strong; and

Footnote

* Philip v. Melville , 21st Feb. 1809; Elton Hammond v. Nelson , 24th June 1812; Fell on Guarantee, pages 125, 127.

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2. The factory did not terminate by the death of Mr. Strong, unless on the supposition that the tutory was thereby dissolved. The granting of the factory was a proper tutorial act; and if the office survived in the persons of the other two tutors, the factory remained effectual until terminated by the bankruptcy of the factor. But if so, then the appellant's bond of caution must also remain as effectual as it was during the life of Mr. Strong. It is only in those cases where the appointment

Footnote

* 1 Stair, 6, 14.† 1 Bankton, 7, 120.‡ 1 Mackenzie, 7, 72.§ Young v. Watson , 7th Nov. 1740, Mor. 16,361; Fisher's children, 2d August 1758, Mor. 14,596; Ellis v. Scott , 14th February 1672, Mor. 14,695.

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3. No objection was taken in the Court below to the form of the judgment, and there was nothing incompetent in the Court finding the appellant bound to relieve Mr. Baikie; and, at all events, that part of the judgment finding him liable to the respondent is unobjectionable.Lord Chancellor .—My Lords, this case involves, among other questions of importance to the law of Scotland, one peculiarly deserving your Lordships consideration, namely, whether, upon tutors being appointed by proper authority, if one or more of them shall have died or become incapacitated, or declined exercising that function, the tutory-dative shall continue to exist? Upon this very important question no authority appears in the law of Scotland, so far as judicial decision goes, nor has any case ever been decided upon any other point so related to this, as arguing from the one decision to the other, to furnish authority in point of reason, which should enable us to rule the present case. Two very valuable authorities in the law of Scotland, and one particularly, Lord Stair, are cited. Lord Stair is followed by Lord Bankton, as supporting the proposition, that where there are either tutors-nominate or tutors-dative, though a joint appointment shall not be specified, nor a clause as to a quorum, nor sine quo, nor sine quibus non, introduced, yet upon a supervening incapacity or decease of one of those tutors there is survivorship of the tutorial office to the other tutors, in the case of tutors-dative, as well as in the case of tutors-nominate

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The House of Lords ordered and adjudged, That the several interlocutors complained of in the said appeal be and the same are hereby reversed: And it is declared,

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Solicitors: George W. Poole—, Solicitors.