Scottish Court of Session Decisions

On 19th March 1888 a petition was presented to the Court by Mr Warrington Evans Broad, the holder of certain mortgages for £3370 and other sums of the Edinburgh Northern Tramways Company incorporated under the Edinburgh Northern Tramways Act 1884, for the appointment of an interim judicial factor upon the undertaking in terms of the provisions of the 56th and 57th sections of the Companies Clauses Consolidation (Scotland) Act 1845.

The 57th section of that Act provides—“Every application for a judicial factor in the cases aforesaid shall be made to the Court of Session, and on any such application so made, and after hearing the parties, it shall be lawful for the said Court, by order in writing, to appoint some person to receive the whole or a competent part of the tolls or sums liable to the payment of such interest, or such principal and interest, as the case may be, until such interest, or until such principal and interest, as the case may be, together with all costs, including the charges of receiving the tolls or sums aforesaid, be fully paid.” …

It was argued for the petitioner that the decision in the case of the Glasgow, Garnkirk, and Coatbridge Railway Company, May 28, 1850, 12 D. 944, in which it was held that such an appointment could not be made in vacation did not now apply, in view of the provisions of the 4th and 10th sections of the Distribution of Business Act 1857 (20 and 21 Vict. c. 56).

The 4th section of that Act provides (sub-sec. 4) that “Petitions and applications for the appointment of judicial factors” should be disposed of before the Junior Lord Ordinary, and the 10th section provides that “the Lord Ordinary on the Bills during vacation shall have the same powers in regard to petitions for the appointment of … judical factors as are by this Act conferred in relation thereto on the Junior Lord Ordinary as aforesaid.”

The Court held that the provisions of the Distribution of Business Act 1857 could not be held to apply to the present case which involved the exercise of a kind of diligence, but in respect that the company were represented at the bar and gave their consent they pronounced an interlocutor holding intimation and service to be granted as prayed for, and of consent appointed Mr D. N. Cotton to be interim judicial factor.