Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aitken Petitioner [1893] ScotLR 31_74 (10 November 1893)
URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0074.html
Cite as: [1893] SLR 31_74, [1893] ScotLR 31_74

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 74↓

Court of Session Inner House First Division.

Friday, November 10. 1893.

[ Lord Kyllachy, Ordinary.

31 SLR 74

Aitken Petitioner.

Subject_1Judicial Factor
Subject_2Delivery of Bond of Caution
Subject_3Audit by Accountant of Court where Judicial Discharge not Asked
Subject_4Judicial Factors (Scotland) Act 1889, secs. 6 and 20.
Facts:

Held that a judicial factor, although appointed before 1889, and although he does not ask for a judicial discharge, cannot demand redelivery of his bond of caution until his accounts have been passed by the Accountant of Court; but that the Accountant of Court may, if he think fit, dispense with a full and strict audit of such accounts.

Headnote:

The Judicial Factors (Scotland) Act 1889 (52 and 53 Vict. cap. 39), by section 6 provides, that “in addition to the factors specified in the recited Act of 1849 (The Pupils Protection Act), the Accountant of Court shall superintend the conduct of all other factors and persons already appointed or to be appointed by the Court of Session.” …

Section 20 provides that “section 23 of the Pupils Protection Act (as to factories informally settled) shall be held to apply to all factories under the supervision of the Accountant by virtue of this Act. And section 23 of the Pupils Protection Act provides that any settlement made of any such factory (viz., factories constituted before the passing of the Act), though informal, shall be held as a prima facie discharge to the factor, and the Accountant shall not report the same as a subsisting factory, or require further proceedings therein, … and in any such factory in which, though there has been no settlement, it shall appear that no benefit is likely to be derived by the parties
Page: 75↓
interested in the estate from further proceedings therein, and no party interested shall make appearance and require such proceedings, the Accountant shall place amongst the papers connected with the estate a memorandum of the circumstances, and shall state in his report that further proceedings are for the present unadvisable.

Robert Easton Aitken, C.A., Glasgow, presented a petition to the Junior Lord Ordinary, in which he stated that he had by decree of the Court of Session been appointed judicial factor upon February 3, 1877, to administer a trust fund of £300, that he had duly administered that fund in terms of the trust-deed, had now paid it over to the beneficiary who had recently come of age, and had received from him a discharge. He accordingly prayed the Court, after due intimation and service, to grant warrant to the Accountant of Court to deliver up his bond of caution.

No answers were lodged, but upon 8th August 1893 the Lord Ordinary ( Kyllachy) pronounced this interlocutor:—“Having heard the agent for the petitioner, and considered the petition and proceedings, remits to the Accountant of Court to examine and audit the account of the factor, with the relative vouchers, and to report; and in respect that the petitioner objects to the said remit as an innovation on the practice previous to the passing of the Judicial Factors Act of 1889, and desires leave to have the procedure authoritatively settled, grants leave to reclaim.”

Against this interlocutor the factor reclaimed, and argued—Where a judicial discharge was not asked, but only a warrant for delivery of the factor's bond of caution, an extrajudicial discharge by the sole beneficiary being produced in process, it had been the invariable practice of the Court to grant such warrant without a judicial audit. This was settled by a decision of the Inner House in Rollo, Petitioner, 1852, 14 D. 990; followed by Mackay and Others, Petitioners, 19 D. 503; and it was so stated in Thoms on Judicial Factors (2nd ed.) p. 503; and in Mackay's Manual of Court of Session Practice, p. 545. This practice had been departed from since the passing of the Judicial Factors Act in 1889, and the expense of an audit, where the factory had been in existence for some time, was a great hardship in the case of small estates. Here the estate was under £300, and the factory had been in existence since 1877. The case was different where the factory had been under the supervision of the Accountant of Court from the first, and the audit would only cover the portions of a year which had elapsed since the date of the last annual audit. Here the audit must cover the period from the appointment of the factor in 1877, and the estate having been handed over to the sole beneficiary and the factor discharged, no useful purpose was to be served by such an audit.

At advising—

Judgment:

Lord Adam—This is a reclaiming-note against the interlocutor of the Lord Ordinary, presented with the view of having a certain question of practice authoritatively settled. Before the passing of the Judicial Factors Act of 1889 factories were divided into two classes, viz., those that fell under the provisions of the Pupils Protection Act, and those that did not. With regard to those two classes the practice was different.

If a factor under the Pupils Protection Act asked for re-delivery of his bond of caution, he had at the same time to exhibit his accounts audited by the Accountant of Court. Factors not under that Act might be in either of two positions. If they asked for a judicial discharge, then their accounts were remitted to an independent accountant, and if found correct discharge was granted and their bond of caution given up. If, on the other hand, they were willing to dispense with the security and protection of a judicial discharge, deeming a discharge by the beneficiaries sufficient, the Court dispensed with such a remit and de piano granted warrant for the redelivery of their bond of caution.

Now, it is said that the passing of the Act of 1889 has had the effect of putting all factories not formerly under the Pupils Protection Act in the same position as those under that Act, rendering all alike subject to the supervision of the Accountant of Court, that the practice of granting warrant for delivery of the bond of caution without an audit is at an end even in cases where no judicial discharge is asked, that the Accountant of Court is never bound to give up a bond of caution unless he has first audited the factor's accounts, and that this operates as a hardship in the case of small estates.

In my opinion, the intention of the Legislature was that all classes of factories should be treated in the same way and as those then under the Pupils Protection Act were treated. There may or there may not be reasons for the Accountant of Court, under the 23rd section of the Pupils Protection Act and the 20th section of the Judicial Factors Act, thinking that more or less investigation short of a strict audit will be sufficient before he gives up the bond of caution, but that is for him to judge. I think that under the Act of 1889 the procedure of submitting the accounts to the Accountant of Court in the case of all factories must be the same, and that meantime the accounts of the petitioner here must be laid before the Accountant.

Lord M'Laren—I see no need of introducing any difference of practice in the case of judicial factors upon trust-estates. The general intention of the Act of 1889 was to place all such factories under the supervision of the Accountant of Court, exactly in the same way as factories under the Pupils Protection Act, the accounts in which were audited by him.

I am confirmed in that view when I see that the Act of 1889 provides by section 20 that section 23 of the Pupils Protection Act

Page: 76↓

shall apply to all factories brought under the supervision of the Accountant of Court. That section refers to factories brought under the supervision of the Accountant for the first time, and applies to old factories in which it may be inadvisable to incur the expense of an exhaustive audit from the beginning of the factory. That inadvisability may arise from the fact that the factor is not asking for a judicial discharge, or from the fact that minute investigation into all the details of the factory is not desirable.

The exigency which is said to have arisen here is therefore completely provided for by the Act, and it is for the Accountant of Court to consider whether in the special circumstances of the case he will dispense with a full audit, either because a discharge by the beneficiary has been produced or because the amount of the estate does not warrant the expense of such an audit. That discretionary power being left to the Accountant of Court in exceptional circumstances, I see no ground for the Court, who have no knowledge of such circumstances, interfering to dispense with the necessity of submitting these accounts to the Accountant of Court.

The Lord President and Lord Kinnear concurred.

The Court adhered.

Counsel:

Counsel for the Petitioner— Tait. Agent— F. J. Martin, W.S.
1893