Scottish Court of Session Decisions

The Distribution of Business (Court of Session) Act 1857 (20 and 21 Vict. cap. 56), sec. 4, enacts—“All summary petitions and applications to the Lords of Council and Session which are not incident to matters or causes actually depending at the time of presenting the same, shall be brought before the Junior Lord Ordinary officiating in the Outer House, who shall deal therewith and dispose thereof as to him shall seem just; and in particular, all petitions and applications falling under any of the descriptions following shall be so enrolled before and dealt with and disposed of by

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the Junior Lord Ordinary, and shall not be taken in the first instance before either of the two Divisions of the Court, viz., … 4. Petitions and applications for the appointment of judicial factors.”

Archibald Smith, joint-tenant of the farm of Branxton and Unthank, Largo, presented a petition to the Second Division of the Court of Session, in which he averred that for the last two years David Smith, the other joint-tenant in the farm, had become intemperate, and neglected the management and cultivation of the farm, and had become so violent, and threatened the petitioner to such an extent, that the petitioner, in fear that his life was in danger, had to leave the farm and take up his residence elsewhere. The petitioner further averred that he was thus precluded from having any voice in the management of the farm, which was being carried on by David Smith in a reckless and improvident manner, and that David Smith kept no accounts, had failed to pay the last half-year's rent, and was about to sell the stock on the farm and apply the proceeds to his own purposes.

The petitioner therefore prayed their Lordships to appoint Thomas Graham judicial factor ad interim, pending the intimation and service of the petition; “and thereafter, on resuming consideration hereof, with or without answers, to sequestrate the said partnership estate, and to appoint the said Thomas Graham, or such person as your Lordships may think proper, to be judicial factor on the said estate, with the usual powers, he always finding caution before extract, and to decern ad interim: Further, and alternatively to the crave for appointment of a judicial factor ad interim, to interdict, prohibit, and discharge (until the prayer of this petition is granted or refused) the said David Smith from interfering with the management of the said farm, and from selling or disposing of the crop, stock, implements of husbandry, and others thereon, and the young horses and cattle in the grass park at Bruntshiels aforesaid; and to grant interim interdict.”

David Smith lodged answers, in which, inter alia, he objected to the competency of the petition, on the ground that it should have been brought before the Junior Lord Ordinary under section 4 of the Distribution of Business Act 1857.

Argued for the respondent—A petition for the appointment of a judicial factor, and not incident to a depending action, was only competent before the Junior Lord Ordinary, unless (1) the petition asked for something the Lord Ordinary could not deal with, or (2) the appointment of judicial factor was incidental to something the Lord Ordinary could not deal with. Where the petitioner asked for the removal of trustees, it was only competent in the Inner House— Mitchell, Petitioner, July 20, 1864, 2 Macph. 1378—but where it did not ask for such, it was only competent before the Lord Ordinary— Rhind v. Steven, July 20, 1875, 2 R. 1002.

Argued for the petitioner—The better practice was to present applications both for sequestration and the appointment of a judicial factor to the Inner House—Mackay's Practice of the Court of Session, ii. 357; Rintoul, Petitioner, December 20, 1862, 1 Macph. 214; Spiers v. Spiers, November 6, 1877, 5 R. 75, opinion of Lord President (Inglis), 77. Besides, there was here a prayer for interdict, which could be granted by the Inner House in the exercise of their nobile officium. The Lord Ordinary's duties were purely statutory, and he could not grant the prayer for interdict— Webster v. Miller's Trustees, February 26, 1887, 14 R. 501. The petition was therefore presented to the tribunal which could deal with all its parts.

At advising—