Scottish Court of Session Decisions

This was an appeal presented to the Lord Ordinary

Page: 490↓

on the Bills under the provisions of 19 and 20 Vic. cap. 93, sec. 6, by James Boyd, factor and commissioner for the trustees of the late Robert Steel of Browncastle and Burnhouse, against a deliverance of the Commissioners of Supply of the county of Lanark refusing to enrol him as a Commissioner on the ground of “want of statutory qualification.” It was not disputed that the trustees were infeft in lands yielding the requisite amount of rent or value, nor that Boyd was their duly appointed factor.

In support of his appeal the claimant founded on section 19 of the Valuation of Lands Act (17 and 18 Vic. cap. 91), which, inter alia, enacted that “the factor of any proprietor or proprietors infeft, either in liferent or in fee, unburdened as aforesaid, in lands and heritages within such county of the yearly rent or value, in terms of this Act, of eight hundred pounds, shall be qualified to act as a Commissioner of Supply in the absence of such proprietor or proprietors.”

By section 42 of the above statute the word “factor” was defined to mean “a person acting under a probative factory and commission for the proprietor or proprietors, including corporations being proprietors, for whom he is factor, and in the bona fide actual management as such factor of the lands and heritages belonging to such proprietor.”

A previous case raising the same question (not reported), viz., Darling v. The Commissioners of Supply of Lanarkshire, decided by the Lord Ordinary on the Bills (Ormidale) on January 14, 1870, was quoted for the appellant. In that case there was a claim to be enrolled either as a proprietor in the sense of the Act qua trustee, or alternatively as factor for the trustees. The Commissioners pleaded (1) that the claimant was not entered proprietor as required on the valuation roll; (2) that there was no qualification as proprietor qua trustee under the 19th and 42d sections of the Act 17 and 18 Vic. cap. 91; (3) that the claimant was only one of a body of trustees, and could not come forward in a representative character for himself and the others; (4) that if the trustees were not entitled to be enrolled neither was their factor.

In that case the Lord Ordinary, on 14th January 1870, pronounced an interlocutor finding that the appellant was entitled to be enrolled as a Commissioner of Supply, as factor, to act in the absence of the trustees, and to that extent and effect altered the deliverance appealed from. He added the following note:—

Note.—It was not disputed that the trustees of the late William Darling are infeft in lands and heritages within the county of Lanark of the requisite amount of rent or value, nor was it disputed that the appellant is their factor. In this state of matters it appears to the Lord Ordinary that according to the true construction of sections 19 and 42 of the Lands Valuation (Scotland) Act, looked at together, the appellant must be held to be qualified, as the factor of Darling's trustees, to be a Commissioner of Supply to act in their absence. In any other view the mention of trustees in section 42 of the Act would be without an object or meaning.

It also appears to the Lord Ordinary that having regard to the terms of the statute, which expressly declares that a factor in the position of Mr Darling ‘is qualified to act,’ not merely as the proxy of some other party, but ‘as a Commissioner of Supply’ in the absence of such other party, the appellant is entitled to be put on the roll of Commissioners ‘as factor for the trustees of the late William Darling.’ The Lord Ordinary cannot see how his being so entered on the roll of Commissioners of Supply can do any harm, while he can quite understand that it may tend to obviate much inconvenience and trouble to all concerned.

“The appellant in this case also claimed to be enrolled as one of the late William Darling's trustees, but the Lord Ordinary has not found it necessary to determine whether such a claim is good in itself or not, as he is clear that the appellant is not entitled to be entered in that capacity and also as factor for Mr Darling's trustees; and it was stated for him that he was not to be understood as maintaining that he was.”

Following that authority, the Lord Ordinary in the present case, on 19th December 1876, found the appellant entitled to be enrolled “as factor for the trustees of the late Robert Steele, to act in their absence,” and to this extent and effect sustained the appeal and altered the deliverance.