Scottish Court of Session Decisions

The Judicial Factors (Scotland) Act 1889, sec. 6, enacts—“In addition to the factors specified in the recited Act of 1849, the Accountant shall superintend the conduct of all other factors and persons already appointed or to be appointed by the Court of Session, or any of the Lords Ordinary in the said Court, or by any of the Sheriffs or Sheriff-Substitutes in the several Sheriff Courts in Scotland, to hold, administer, or protect any property or funds belonging to persons or estates in Scotland; and all such factors and others shall be and hereby are made subject to the provisions affecting judicial factors of the said recited Act of 1849, and of any Acts amending the same, or in terms of the Judicial Factors (Scotland) Act 1880, and of any Acts of Sederunt made in terms of said Acts; and the Accountant shall see that they duly observe all rules and regulations affecting them for the time: Provided that nothing in this section contained shall be held to apply to executors-dative….”.

On March 16, 1907, J. Campbell Penney, chartered accountant, Edinburgh, the Accountant of Court, made report to their Lordships of the First Division of the Court of Session, in terms of the Judicial Factors (Scotland) Act 1880, sec. 4, sub-sec. 7, as follows—“The Accountant of Court begs to report that in 1896 he first became aware, through a special remit by Sheriff Thoms, that throughout the sheriffdoms appointments of judicial factors were made which were not reported to him and had not therefore come under his supervision.—

“These were appointments made in the Commissary Courts for the purpose of confirming to the estates of intestate persons who had left no representatives, or whose children were in minority.

Page: 644↓

After getting an opinion from the then Solicitor-General that these appointments fell under his supervision, the Accountant called upon the Sheriff Clerks to intimate all such appointments to him. This order was complied with, and there have been reported to date 148 such appointments (78 of which came from Glasgow). These have been annually supervised by the Accountant, and in several cases discharges granted at close on report by him in the usual way.

In the Sheriff Court of Lanarkshire at Glasgow, Alexander Rankine was, in February 1902, appointed ‘factor for Christina M'Intyre, who is in minority, and John M'Intyre, Helen M'Intyre, and Duncan M'Intyre, who are in pupilarity.’ This was duly intimated to the Accountant. An inventory was lodged, and annual accounts subsequently audited up to 5th September 1906. when the estate was exhausted.

In November 1906 the usual petition for discharge was presented, which was refused by the Sheriff on the ground that it was an application as executor-dative and not as factor,

In the Sheriff Court of Lanarkshire at Glasgow, John Meikle was, in June 1903, appointed factor for Catherine Meikle, James Meikle, and John Meikle, children of the deceased James Meikle, mason, Glasgow. An inventory and annual accounts were duly lodged.

In November 1906, the cautioner having died, the Accountant issued a requisition to find new caution, and in January 1907 he received a letter from the factor that the Sheriff Clerk declined to issue a new bond of caution ‘in respect he held the Accountant had no right of supervision over factories of this nature.’

In the Sheriff Court of Forfarshire, at Forfar, George G. Milne, grain merchant, Montrose, was, in September 1898, appointed factor for the two pupil sons of the deceased Mrs Jane Mitchell, Montrose. An inventory and accounts were duly lodged, and the factor lodged with the Accountant a note for special powers. On the Accountant's report being laid before the Sheriff, he found ‘that it was incompetent to grant the authority craved, and refused the crave of the note.’

In the Sheriff Courts of Aberdeenshire, Ayrshire, &c., no such questions have been raised, and accounts are lodged and discharges granted in the usual way.

There being thus diversity of judgment and practice in proceeding in regard to these judicial factors, the Accountant craves your Lordships, in terms of section 4, sub-section 7, of the Judicial Factors Act 1880, for a rule deciding whether factors appointed under these conditions fall under his supervision.”

Counsel for the Accountant submitted that the factors appointed by the Sheriffs in the Commissary Court fell within section 6, of the Judicial Factors (Scotland) Act 1889, and that the proviso at the end of the section did not applly to them but to executors-dative in their own right. Prior to the passing of that Act the business of the Commissary Court had been transferred to the Sheriff Court, and consequently it must have been intended by the Legislature to bring the factors who were formerly there appointed under the same rules. It had, however to be admitted that different views had been held—Thoms on Factors, p. 517; Dove Wilson's Sheriff Court Practice, 551; Alexander's Practice, p. 54—but these views were wrong. The position of a factor so appointed was that of a factor— Johnstone v. Lowden, February 15, 1838, 16 S. 541, esp. Lord Gillies at p. 547. His confirmation qua executor did not end the factory. It continued till he obtained his discharge qua factor— Johnston's Executor v. Dobie, November 3, 1906, S.C. 31, 44 S.L.R. 34. [ The Accountant of Court, March 17, 1893, 20 R. 573, 30 S.L.R. 527, was also referred to for form of proposed order.]

At advising—