Calver v Howard, Baker, & Company
| Jurisdiction | Scotland |
| Court | Court of Session |
| Judgment Date | 1894 |
| Date | 1894 |
| Docket Number | No. 2. |
Lord Justice-Clerk, Lord Young, Lord Rutherfurd Clark, Lord Trayner.
Judicial Factor—Title to sue—Action raised by factor before he had obtained extract of appointment—Act of Sederunt—A. S., Jan. 14, 1881, sec. 6.—
Section 6 of the Act of Sederunt, 14th January 1881, passed in pursuance of the Judicial Factors (Scotland) Act, 1880, inter alia provides that ‘no factor shall be entitled to act until he has obtained extract.’
On 13th September a curator bonis was appointed under the Judicial Factors Act, 1880, to a workman, who had been injured when engaged in his work, and had subsequently become insane. On 14th September the curator bonis, without having obtained extract of his appointment, raised an action against the firm which had employed his ward, praying for damages at common law, and under the Employers Liability Act, 1880. On 15th September, the period within which an action under the Employers Liability Act for damages might be raised, expired. The curator bonis obtained extract of his appointment on 22d September.
The defenders pleaded no title to sue, in respect that at the date when the action was raised the curator bonis had not obtained extract of his appointment.
The Court (dub. Lord Trayner), in the circumstances, repelled the plea.
In September 1894 Robert John Calver, S.S.C., ‘as curator bonis, nominated and appointed by the Sheriff-substitute of the Lothians and Peebles, to John Burns, labourer, presently an inmate of the Royal Asylum for the Insane, Morningside, Edinburgh,’ raised an action in the Sheriff Court at Kirkcaldy against Howard, Baker, & Company, contractors, Auchtertool, by Kirkcaldy, praying for payment of damages alternatively at common law and under the Employers Liability Act, 1880, on account of injuries sustained by Burns when in the employment of the defenders.
Howard, Baker, & Company lodged defences in which they, inter alia, averred,—‘The pursuer has neither found caution nor obtained an extract of his appointment,’ and pleaded—(1) No title to sue.
The following facts, bearing on the question of title to sue, were not in dispute between the parties*:—
On 15th March 1894, Burns, who was an unskilled labourer then in the employment of the defenders, received the injuries on account of which the pursuer claimed damages. On 27th April Burns, having become insane, was removed to the Royal Asylum at Morningside, Edinburgh.
On 13th September the pursuer was appointed curator bonis to Burns by the Sheriff-substitute of the Lothians and Peebles.
On 14th September the petition in the present action was served on the defenders.
On 15th September, the period within which an action under the Employers
Liability Act, 1880, on account of the injuries sustained by Burns could be raised, expired.*
On 22d September the pursuer found caution for his intromissions as curator bonis, and on 23d September he obtained an extract of his appointment.
On 10th October the record in the action was closed.
The Sheriff-substitute (Gillespie), on...
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