Scottish Court of Session Decisions

Section 4, sub-section 7 of the Judicial Factors Act of 1880 provides as follows—“It shall be the duty of the Accountant, when it appears to him that there is a diversity of judgment or practice in proceedings in judicial factories in the Sheriff Courts which it would be important to put an end to, to report the same to the First Division of the Court of Session, specifying the proceedings in which such diversity appeared, and asking for a rule to be laid down to secure uniformity of judgment or practice in such proceedings, and the Court shall consider such report, and if they shall see fit shall lay down such a rule accordingly, which rule the several sheriffs and their substitutes shall be bound to observe.”

On 8th March 1893 J. Campbell Penney, Accountant of Court, presented a report under the above sub-section, stating that there appeared to him to be “a diversity of judgment or practice in proceedings in judicial factories in Sheriff Courts relative to the application for the appointment of a new factor when the ward has been removed out of the county in which the original petition was presented.” He asked that a rule should be laid down to secure uniformity of practice in such proceedings.

In support of his application the Accountant referred to two cases which had occurred in the Sheriff Courts. In the first of these cases the original appointment of a factor was made in the Sheriff Court of the Lothians and Peebles, and the factor having become insane, his appointment was recalled and he was discharged by the same Court. Before the conclusion of these proceedings the ward had removed to Stirlingshire, and a petition for the appointment of a new factor was thereafter presented to the Sheriff of that county, and this petition was granted. In the second case the original appointment was made in the Sheriff Court of the Lothians, and the ward, who was a lunatic, was subsequently removed to Aberdeenshire. The factor having thereafter died, a petition for his discharge and for the appointment of a new factor was presented in the Sheriff Court of the Lothians, but the Sheriff held that the application for the new appointment should be made in the Court of the Sheriff within whose jurisdiction the ward was then resident. The agent in the curatory then consulted the Sheriff of Aberdeen, who expressed a verbal opinion that an application to him was not competent, in respect the original application had been made in the Sheriff Court of Edinburgh.

Section 4, sub-section 1, of the Judicial Factors Act of 1880 provides—“Until otherwise prescribed, proceedings for appointment of judicial factors in the Sheriff Court shall commence by petition to be presented to the sheriff or sheriff-substitute of the county in which the pupil or insane person is resident, as nearly may be in the form in use in ordinary actions in that court, and shall thereafter be conducted therein as nearly as may be in the same form and manner in which proceedings under the recited Acts are conducted before the Lord Ordinary.”

Counsel for the Accountant submitted that the more convenient course would be that applications for the appointment of new judicial factors should be made in the sheriff court in which the original appointments had been made. Under section 2 of the Act of Sederunt of 14th January 1881, applications for special powers, recal, removal, discharge, and other purposes were made in the Sheriff Court where the original appointment had been made, although the ward might have removed out of the jurisdiction of that court. No advantage could be gained by drawing a distinction between such applications and an application for the appointment of a new factor. Such a distinction would render separate proceedings in different Sheriff Courts necessary for the discharge of the original factor and the appointment of his successor, and would entail extra expense, which would press very heavily on small estates. When jurisdiction had once been established, the place of the ward's residence appeared to be quite immaterial.

At advising—