Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. VII.

Nobile officium.

Mary Cowan and Andrew Cowan her Father, Petitioners

Date: 19 January 1788
Case No. No 174.

In the appointment of a factor loco tutoris, where the application was made in name of the mother of the children, and her father, the Lords ordered intimation to be made to the two nearest agnates.

Click here to view a pdf copy of this documet : PDF Copy

The husband of Mary Cowan died possessed of property, both heritable and moveable, leaving several infant children by her, but without having made any settlement of his effects, or nomination of tutors or curators to his children. Along with her father, she presented a petition to the Court, stating these circumstances, and adding, that the tutor of law was, by reason of infirmity, incapable of dicharging that office; and therefore praying, that she might be appointed factrix loco tutoris to the children during her widowity. On advising the petition, it was

Observed on the Bench, The granting of factories loco tutoris, is in itself a stretch of the powers of the Court, and in every instance ought to be strictly guarded by the established rules. In the present case, as the application is only made in the names of the mother of the children, and of her father, intimation ought to be given under form of instrument to the two nearest agnates, not because their consent is deemed essential, but in order that they may have an opportunity of stating any relevant objection to the proceeding.

The Court having unanimously acquiesced in this opinion, the above mentioned intimation was accordingly ordered.

For the Petitioner, Dickson. Fol. Dic. v. 3. p. 348. Fac. Col. No 16. p. 28.