Scottish Court of Session Decisions

Certain lands over which there was a bond and disposition in security for £250 were sold and the amount of the bond deposited in bank pending appointment of a curator bonis to the party in right of the bond, who was a lunatic. After the curator's appointment he applied to the debtor to pay over the £250 in exchange for a discharge of the bond which he, viz., the curator, was to grant. The debtor, however, refused to do this unless the discharge was granted by the curator in virtue of special powers obtained by him from the Court. The curator upon this presented a note to the Accountant of Court asking an opinion on the following points—(1) Whether the curator can in the circumstances grant a valid discharge of said bond and disposition in security without special powers to discharge the bond? and (2) Whether special powers should be applied for, or what other course the curator should adopt in order to recover payment of the amount due under said bond? The Accountant gave the following opinion:—

“ Edinburgh, 26 th February 1879.

“The heritable bond referred to being in name of the ward, the Accountant is of opinion that the factor requires special powers from the Court to enable him to grant a valid discharge. Though in practice discharges may in some cases be accepted by debtors from a factor without special powers, it appears to the Accountant that authority from the Court is necessary when insisted on by a debtor.”