Scottish Court of Session Decisions

The Court of Session Act 1857 (Distribution of Business Act) (20 and 21 Vict. cap. 56) in sec. 1 enacts—“It shall be lawful for the Lord President of the Court of Session from time to time, as it shall appear to him to be necessary or expedient with a view to promote the due despatch of the business of the Court, to transfer causes from one Division of the Court to the other, and from any one Lord Ordinary to any other Lord Ordinary, to such extent as he shall judge to be necessary or expedient, for the purpose of promoting despatch and preventing delay.…”

Section 4 provides—“All summary petitions and applications to the Lords of Council and Session which are not incident to actions 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 the Junior Lord Ordinary, and shall not be taken in the first instance before either of the two Divisions of the Court viz., (1) … (2) … (3) … (4) … (5) …”

The Act of Sederunt of 25th November 1857 regulates the procedure of judicial factors under the Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79). In its 29th sec. it provides — “All proceedings which in this Act are appointed to take place by or before the Court shall, although the same be addressed to the Lords of Council and Session, be brought before, dealt with and disposed of by the Junior Lord Ordinary officiating in the Outer House, or by the Lord Ordinary officiating on the Bills in time of vacation, subject to the review of the Inner House, in conformity with the 4th sec. of the statute 20 and 21 Vict. cap. 56.

The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 164, inter alia, provides—“It shall be competent to one or more creditors of parties deceased to the amount of £100, or to persons having an interest in the succession of such parties, in the event of the deceased having left no settlement appointing trustees or other parties having power to manage his estate or part thereof … to apply by summary petition to either Division of the Court for the appointment of a judicial factor and … the Court may appoint such factor.…”

The Clerks of Session Regulation Act 1889 (52 and 53 Vict. cap. 54), sec. 3, provides—“… All summary petitions and applications which are at present under the provisions of sec. 4 of” the Court of Session Act 1857 “appropriated to the Junior Lord Ordinary, shall … be presented and disposed of in the Bill Chamber, … and such applications may be made and petitions presented and disposed of and orders pronounced thereon at all times by the Junior Lord Ordinary in Session and by the Lord Ordinary on the Bills in vacation, provided that nothing herein contained shall affect the form of such applications and petitions, or of the interlocutors to be pronounced therein, or the preparation of extracts of decrees pronounced therein,

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or shall increase or alter the powers presently possessed during vacation by the Lord Ordinary on the Bills, who shall have the same powers, including that of reporting to the Inner House, as are at present exercised by the Junior Lord Ordinary.”

In 1899 Mrs Ellen Mullin or M'Cardie presented a petition under sec. 164 of the Bankruptcy (Scotland) Act 1856, in which she sought the appointment of a judicial factor on the estate of her deceased husband, the late James M'Cardie of Carnlough, in the county of Antrim, and 129 Trongate, Glasgow, and under it J. M. M'Leod, C. A., Glasgow, was duly appointed judicial factor. By the Act of Sederunt of 25th November 1857 ( supra) the petition was appropriated to the Junior Lord Ordinary, who at the time of its being presented was Lord Pearson. During the proceedings following on the petition Lord Pearson was succeeded in the position of Junior Lord Ordinary by several successive Judges, before each of whom the cause from time to time came. When Lord Salvesen was appointed Junior Lord Ordinary he intimated to the Lord President his disinclination to act as Judge in the cause because he had formerly acted as counsel for one of the parties, and the Lord President therefore on 7th November 1905 transferred the cause to Lord Johnston. On Lord Mackenzie succeeding Lord Salvesen as Junior Lord Ordinary a minute was lodged by the petitioner declining the jurisdiction of Lord Johnston.

Lord Johnston reported the cause to the First Division.

Argued for the petitioner—This case fell to be dealt with by the Junior Lord Ordinary under sec. 29 of the Act of Sederunt of 1857, following on the Bankruptcy Act of 1856. The case had been treated as a Bill Chamber case. That appeared not only from the way it had been treated but from the notice of the transfer, for that notice was of a transfer of Bill Chamber causes. It was not a Bill Chamber cause but a Court of Session cause appropriated by the Act of Sederunt to the Junior Lord Ordinary. The only reason for dealing with it in the manner applicable to a Bill Chamber cause was because of the provisions of sec. 29 of the Act of Sederunt 25th November 1857, sec. 4 of the Distribution of Business Act 1857, and sec. 3 of the Clerks of Session Regulation Act 1889. The transfer was not one under the Distribution of Business Act. It had nothing to do with the distribution of business, but was for a reason personal to the Judge from whom it was transferred. It was simply giving effect to Lord Salvesen's declinature— Moubray's Trustees v. Moubray, January 10, 1883, 10 R. 400. Whether the transfer was properly effected or not at the beginning the personal reason for declinature had ceased to exist through the appointment of a new Junior Lord Ordinary, and the case therefore must go before him.

Counsel for the judicial factor was not called on.