Scottish Court of Session Decisions

This petition was presented by A B and his wife for the appointment of a judicial factor. It was refused by Lord Benholme, in respect no sufficient cause was shown to him for the appointment.

It appeared that the husband was proprietor of three different heritable properties in Edinburgh, which were burdened with heritable securities over them for sums of £600, £400, and £450 respectively. The sums so borrowed formed part of the residue of the means and estate of his wife's father, to which his wife succeeded under her father's settlement.

The destination in each of the three bonds was to the wife in liferent, for her liferent use allenarly and exclusive of the jus mariti and right of administration of the husband, and to their only child nominatim, and to such other children as may be born of the wife, in such proportions as she shall appoint; and failing such appointment, equally amongst them and their heirs and assignees in fee. The only child at present surviving is in pupilarity.

The title to the securities having been taken in this manner, a difficulty was raised as to who had the power of discharging the bonds, two of which, it was now proposed, should be paid off, in consequence of the properties having been sold. The prayer of the petition was to appoint a person as judicial factor over the fee of the said sums of £600, £400, and £450, and over the fiars' right and interest in and to the said bonds, and in and to the said subjects themselves, in so far as conveyed in security of the said sums, for the interest of the said surviving child, and of any other lawful children who may be born of the female petitioner—or as judicial factor to act for the said surviving child, and for the interest of any other lawful child who may hereafter be born, as aforesaid, in so far as regards, and for the purpose of protecting their rights and interests in the fee of the foresaid sums, and in order that the said sums might be invested, when paid up, in heritable security, under the same destination as at present; and further, for authority to the factor, when appointed, to uplift the two sums, and to grant discharges of the two bonds.