UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL or LAW LIBRARY TREATISE Zj?^^^^^^ JUDICIAL FACTORS, CURATORS BONIS, MANAGERS OF BURGHS: WITH AN APPENDIX RELATIVE ACTS OF PARLIAMENT AND SEDERUNT, AND PRACTICAL FORMS. BY GEORGE HUNTER THOMS, ADA'OCATE. EDINBURGH : BELL & BRADFUTE, BANK STPtEET. MDCCCLIX. vi HAMILTON, ON, ^N^^^K QUEEN STEEET, EDDIBUEQa TO EDWARD FRANCIS MAITLAND, ESQUIRE, ADVOCATE, HEK MAJESTY'S SOLICITOK-GENERAL FOR SCOTLAND, THIS TREATISE IS DEDICATED, IN ACKNOWLEDGMENT OF PERSONAL AND PROFESSIONAL KINDNESS. PREFACE. This treatise, it is hoped, will supply a blank which has long been felt to exist in the practical department of legal literature. The suggestion on which it was undertaken was made by a young and valued friend, who unfortunately has not survived to see its completion. The author is not without hope that one result of his humble efforts will be, the amendment of some of those legislative provisions, which betray in their operation the haste in which too many of our legal improvements are attempted and carried out. The author feels that it would be invidious to particu- larize any of the many friends to whom he is indebted for sympathy and assistance in the task which he has now completed. From one and all of the members of the pro- fession, as well as those parties in official positions to wdiom the author resorted for information, he experienced most uniform kindness ; and to them all he feels bound to ten- der most grateful acknowledgments. vi I'UEFACE. At tUc !«ume time, it is duo to tUosc ulio may consult this Treatise vn tliosc practical details wLicli uro more witliin the province of Agents, t«^ inform them that the author has, in regard to those, availed himself of tlic kind assistance of his friend, Air Kohert Smith, junior, S.S.C., than whom, it will ho admitted by all who know that gentle- man, no QUO is hotter qualified to uflord such aid. r? Ai.nASY Rtuket, Ei>iniiiki;ii. Mth June iHo'J. C iN T E N T S. List of Cases, Page CHAPTER I. -NATURE OF OFFICE AND CIRCUMSTANCES IN WHICH FACTORS APPOINTED, I. Factors generally, II. Statutory Factors, III. Managers of Burghs, IV. Factors on Trust Estates, V. Factors on Intestate Estates, VI. Factor loco absentis, VII. Factor on Partnership Estates, VIII. Factor loco tutoris, IX. Curator Bonis to a Minor Capax, X. Curator Bonis to a Minor Tncnpax XL Curator Bonis to a Party Tncapax, XII. Interim Appointments by Court, XIII. Factors pending Litigation, XIV. Miscellaneous Appointments, 1 5 16 25 36 39 40 44 50 57 58 64 68 74 CHAPTER II.— THE PARTIES TO FACTORIAL APPOINTMENTS, &c. First — Petitionees, &c. I. In regard to Common Law Appointments, 1. For Factors, &c. 2. For Managers of Burghs, 3. For Recall of the Appointment, 4. For Recall of the Management, 5. For Special Powers, 6. Respondents and Compearers, II. In regard to Statutory Appointments, . Second — Factoes, &c., I. In regard to Common Law Appointments. 1. Factors, &c., 2. Managers of Burghs, II. In regard to Statutory Appointments, . 79 79 79 94 95 100 102 105 109 114 114 114 130 134 VI 11 CONTENTS. Page Tiiiun — Expenses as between Pakties to Factoiuai. ArroiNTMENTS, 136 I. In ropnnl to Common Law ApiuiiiitmcntH, . . 13G 1. Factors, &c., . . . . . .136 •2. Muna^'or-s of Burglis, ..... 138 3. Kocall of Ajuioiutment and Management, . . 139 II. In regard to Statutory Appointments, .... 140 CHAPTER III.— POWERS, DUTIES, AND LIABILITIES OF FACTORS, &c. First— Introduction, ...... 144 The Titles to Land (Scotland) Act, . .145 Second — ^Usual oe Ordinary Powers, Duties, and Liabilities, 161 I. Recovery of Estate, . . . . .155 1. In Scotland, . . • . .155 2. Furtli of Scotland, . . . . .163 3. Wliore a Ward. . . . . .165 4. Where Deeds necessary, . . . .165 II. Realization, Investment, and Management of Estate, . 167 1. Moveable Property, . . . .167 2. Pkritahlc Estate, . . . . .173 3. Restriction or Discharge of Liahilitics, . . .174 4. Renunciation ami Revocation, . . . .178 5. IIuw Acts affect Ward, . .178 6. Succession, how Affected, . . .179 7. Wliere Aliment to be Provided. .... 181 ill. Letting of Estate, ...... 183 IV. Inventories, Accounts, &c., ..... 186 1. Regulations of Acts of Sederunt, 186 (1.) Obligations therein detailed. . 186 (2.) Priiiciiiles of the Accounting, . 187 1. Cases and Profits to be communicated, 189 2. Nemo aiiclor in rem Kiiam. .1 90 3. Interest, . . . .192 4. Remuneration, 195 6. Penaltir^s, ..... 198 2. Regulations of tin? Pupils Protection Act, 200 3. RfgidatiouH (pf tlie Riinkrujit and otlier Acts. 204 V. Mi.'*celhineouH Powers, &c., ..... 205 W. Distinctive Features of some Factn a Trust Estate, ..... 221 3. Factors with Special Powers at Appointnn nt. 222 4. Managers of Ilurghs. .... 224 5. Statutory Factors, ..... l'32 CONTENTS. IX Page TiriKD. — Special ok Extraordinary Powers, Duties, and Liabilities, 234 242 242 246 251 258 259 260 265 267 273 282 284 287 290 292 292 292 297 297 III. IV V. VI. VII. VIII, TX. I. Alienation of Property, 1. Sales, . " . 2. Loans, 3. Leases, 4. Feus, II. Titles, Discharges, and Deeds, 1. Completion of Title to Estate, 2. Discharge of Debts to Estate, Transactions in rem versum of Estate, . Payment and Distribution of Funds and Estate, Actions, ..... Implement of Decrees, .... Miscellaneous Cases, .... Pupils Protection Act, .' . . . Distinctive Features of some Factorial Appointments, 1. Curatory of a Minor Capax, 2. Factor on a Trust Estate, 3. Factor on a Partnership Estate, . 4. Statutory Factors, CHAPTEE IV.— CAUTIONERS AND ATTESTORS. III. IV. V. VI. I. Cautioners Generally, . II. The Cautioner's Obligations. 1. Their Endurance, . 2. To whom liability incurred, 3. Principles of Construction, (1.) Eaton V. Cowan, (2.) Kerr v. Bremner, 4. How taken bound, 5. On Default of Princij)al exigible, 6. Mercantile Law (Scotland) Amendment Act, 7. Future Acts of Sederunt, 8. Pupils Protection xict, 9. Questions between Cautioner and Obligee, 10. Where Obligation prior to date of Bond, How and when Cautionry Determinable, How Obligation made Effectual, 1. Is Summary Diligence competent' 2. Pupils Protection Act, Bonds of Guarantee Associations, Audit of Accounts, VII. Cautioners for Burgh Managers, VIII. Cautioners for Statutory Factors, IX. Attestors, 298 301 301 302 303 303 307 311 311 812 313 314 314 315 316 319 319 321 331 335 336 337 337 CONTENTS. Page CIIAPTEU v.— rilOCEDURE. I. Jurisdiction, ....•• ^■iO II. Applications for Ap|Kiiutinint, ..... 340 1. The Gcnonil Form. . . . • ■ 340 2. Boxing an»l Printing, ... . 341 3. Tho CUrk to the Process, .342 4. Reclaiming Nntoa, ..... 342 6. R»ports by Ordinary to Inner House, . 343 (>. Restrictions on Time of presenting Applications, . 344 7. Wlure Petition not the Form, .... 344 8. The Petition ; its Form, ..... 346 9. Productions, .... 356 10. First Enrolment, ..... 357 11. Intimation and Service ; how made, 358 12. Secontl Enrolnant, ..... 3'jl 13. Motion for Appointment. .... 302 14. Caution, ....... 3(15 15. Extract Act and Warrant, .... 306 10. Superseding or Refusing, .... 307 17. Answers to Petition, ..... 308 18. Minutes and Answers, ..... 369 10. Proof, ....... 309 20. Sisting Petitioners, ..... 370 III. Where Procedure different in other Ajiplications, . 370 1. Points common to all Applicatiims after Appointment, 370 2. Points in which Applications after Api)ointment differ, 871 (1.) Applications for Special or Extraordinary Powers, 871 (2.) Interim Audits, ..... 376 (3.) Exoneration and Recall of tiie Aj>pointment an.c.'l840. 250, 202, 200 185s. 170- LIST OF CASES. XIU Bnice, V. Robertson, 29tli May 1845, 70 22d Dec. 1848, 65, 124, 129 11th June 1852, 15, 67, 121, 137 31st Dec. 1708, 166, 188 • 11th June 1709, 188, 315 ■ . V. Hamilton, 23d Dec. 1854, 214 Bryce, 21st Jan. 1823, 282, 284, 369 25th Jan. and 23d July 1828, 4, 39, 60, 97 Brydoue, 27th June 1850, 387 Buccleuch, Duchess of. Feb. 1725,314 Duke of, 1756, 46 10th Jan. 1758, 79, 126 Buchan, Earl of, 21st Dec. 1839, 48, 55, 81 Buchanan, 19th June 1765. 191 19th Dec. 1833. 75. 93 13th Feb. 1847, 191, 194, 195, ^"3d March 1854, 55, 124 Buckie, 11th March 1847, 82, 349 Burnett, 24th Jan. 1829, 27 Jan. 1859, 334, 389 Burns, 13th Dee. 1851. 54 Busby, 1st Feb. 1823, 32 Bute, Dec. 1725, 213 Caird, 9th Dec. 1848, 266. 296 Cairns, 19th Jan. 1838. 89 • 19th Jan. 1838, 26, 223 Caithness, Master of, 3d July 1561. 210 Cameron, 20th Nov. 1849. 120 Campbell, 15th Jan. 1731, 213, 215 26th Jan. 1752, 26. 90 12th Feb. 1755, 253 loth June 1782, 2 20th Jan. 1829, 261 30th Nov. 1841, 259 4th Dec. 1841, 222 23d June 1843, 211 13th July 1849, 125 21st Dec. 1855, 366, 388, 389 Campbell's Curator, 11th Dec. 1851, 248, 272 Cardross. Ladv, 20th Feb. 1708, 213 Carfrae, 11th July 1839, 122 Carlisle, 27th Feb. 1766, 160 Carmichael, 12th July 1700, 36, 85 14th June 1848. 52, 352 Carstairs, 20th Feb. 1672, 190, 191 20th Jan. 1776, 25 Carter, 21st Jan. 1857, 55, 79, 129 Cass, 3d Jan. 1672, 153 Cassilis, Countess of, 18th Feb. 1713, 206 Catenach, 7th June 1707, 2, 114 Cathcart, 11th Feb. 1829, 70 Cawfield. 19th Dec. 1758. 258 Chambers, 27th May 1856, 160, 285, 375 . V. Carruthers, 14th July 1849, 73 Charters, Jan. 1687, 193 Chisholm, 11th Julv 1835, 261 Christie, 16th Feb. 1844, 887 Christy, 10th Julv 1834, 14, 33, 92, 223 Church of England Co., 17th July 1857, 313 Clark, 17th June 1856, 128 Clerk's Crs., 6th Dec. 1699, 292 Cleiigh, 16th Feb. 1837. 129, 137 17th July 1841, 244 Clouston V. Anderson, 15th Jan. 1825, 71 Clvdesdale, Marquis of, 26tli Jan. 1726. 216 Cochran, 17th Feb. 1782, 190 Cochrane, 21st Nov. 1849, 13, 129, 187 Cochran v. Black. 1st Feb. 1855, and 16th July 1857, 171, 189 College of Aberdeen (King's), 27th Jan. 1741, 26 ■ (Marischal), 26 Collins V. Boyd, 6th Feb. 1759. 116, 299 CoUyer v. Fallon, 1 T. and E. 459, 77 Colt, 6th March 1800, 251, 255 3d July 1801, 235, 243 Colqulioun v. Mackay, 9th June 1826. 180 Colzean's Tutor, 5th Feb. 1670, 184. 241 Commercial Bank v. Callender, 4th Feb. 1801, 309 Condie, 20th Nov. 1834, 157, 185. 193, 200 Congleton's Tutor, 18th Dec. 1550, 151 Connon, 20th June 1848. 83 Cooper V. Eeilly, 2 Sim. 560. 1 E. and M. 560 S. C.', 77 Corsar, 24th Feb. 1762, 215 Corson. 10th July 1835, 176 Court, 29th Feb.'l848. 103, 275 Co^van, 19th Jan. 1788, 45, 46, 81, 106 ■ 13th June 1845, and 17th March 1848, 126, 158, 269 Cowan's Hospital, 23d Nov. 1832, 150, 314 Craich, 22d June 1739, 191 Craig, 5th July 1732, 215 • 14th Dec. 1757, 213 Craigie, 10th Jan. 1758, 235, 287 XIV LIST OK CASES. Croigie v. Oordoii. 17fh Junu 1887, 63 Cranstoun. 10th Murcli 1824. I'J'J Crnnst.nvn. 1st D.c. 1820, 156, 157, lit:}, lyc. lc. 1851. 128 Philip, 22d Nov. 1827, 171, 222 Phillip, 23d Nov. 1858, 128, 268, 355 7th Doc. 1858. 370 Pliilp, 24th Deo. 1831. 22, 04, 341, 390 18th Jan. 1832. 10, 227 Pitcairn, 8th Doc. 1838, 222 Pittenweem, 17th Juno 1824, 94, 131, 227 7th June 1825, 99. 132 Plumnur. 8th Maroii 1757. 243 Pollock. 13th Jan. 1747. 110. 290 Pott.T I'. Hartholoiucw, 17th Nov. 1847. 300, 327 Pratt, 28tli Juno 1855. 81, 345 Prentice, 9th Maroli 1849. 76. 91 Primrose r. Calodi.niau Railway Co., 14th Jan. 1851. 110, 232. 347, 307 21.-^t June 1851, 10, 57. 67, 99, 105, 141 20th Nov. 1852. 270 Pringlo. 0th Julv 1841, 161, 260,296 r. 'J'ato, l'7th Nov. 1832, 320, 370 10th Julv 1834, 298. 299. 321 Proctor, 3l8t Jan. 1824. 180. 221 Pultcney, 21.st Fob. 1832, 223 Raa, 15lh Jan. 1595, 213 Hao, 28tli Jan. 1858. 273. 275, 285 Haoburn. llth March 1851. 222 18th Marcli 1851, 354, 380 25th Nov. 1851, 15, 67, 81, 124, 137, 342 llailton r. Mathew, 14th Juno 1844, 3(lth May 1845. an.l llth March 1840. 300 Halston. 3.1 Feb. 1820. 193 Uamsav v. Hav. 19th Nov. 1024, lib litth Jul'v 1710, .338 loth Do.'. 1840. 2(i, 222 Uank.n. 8th Fob. 1710. 218 llth D.o. 183H. 205 22.1 F. b. 1848. 304, 374 Hattrav, 10th Au;;. 1770. 1. 57 HoHV, Lor.l. 5th F.h. 1800. 184. 251 Hookie. loth Fob. 1829. 133 Koid, 10th Jan. 1005. 205 12tli Julv 1088. 180 loth Jul'v 1839, 50 LIST OF CASES. XXI Reid, 21st Feb. 1852, 88 V. Brown, 14th Jan. 1834, 73 Eeidheuch, 14th May 15G2, 178 Rennie v. Morrison, 27th Jan. 1849, 103, 157, IGl, 197, 377 Richard, 13th Jan. 1831, 17 Eiddell, nth Nov. 1746, 38, 44, 116, 164, 261 Roberts, 5th June 1835. 194 nth July 1839, 50, 65, 79, 222 Robertson, 28th May 1814, 103, 208. 285 ■ 7th Dec. 1821, 16, 94, 99, 227 24th Jan. and 13th Dec. 1823, 289 nth March 1829, 61. 223 14th Jan. 1830, 120 7th Feb. 1883, 35, 222 . 18th June 1837, 208 14th Jan. 1841, 268 17th July 1841, 137, 376 26th May 1848, 197 • 3d Dec. 1846. 116 28th June 1849, 37 7th July 1852, 100, 101 2d Dec. 1853, 357 . 14th July 1855. 180, 248. 281 V. Morrison, 26th April 1848. 126 Robinson, 25th Feb. 1825, 344 Roebuck, 6th March 1761, 251 RoUo, 8th July 1852, 101, 354, 384 Rose, 25th Feb. 1678, 193 Ross, 25th June, 1840. 300 17th July 1846, 51, 54 • . Sir C. W. A., nth March 1851, 84 ■ nth March 1856. 200, 388 nth March 1857, 39, 45, 48, 56, 58, 62, 81 Roughead, 5th March, 1833, 25, 33, 89 Roxburt^he, Duke of, 28th June 1738, 274, 286 2d March 1824, 5. 189, 195. 196, 223 Russel, 27th June 1855, 46, 82 Russell. 8d March 1840. 254 8th Feb. 1850, 276 27th June 1855, 349 V. East Anglian Railway Co., 21st Nov. 1850, 103, 111 V. M'Inturner, 11th March 1847. 3, 70 Rutherford, 25th Jan. 1845, 106, 370 Ruthven 12th Dec. 1611, 44 March 1682. 179 Ruthvens, 13th July 1688, 219 Rynd, 22d March, 1634, 215 Saltcoats, 8th Feb. 1623, 216 Sandilands, 17th Nov. 1680, 198 Sanquhar, Lord, March 1588. 190 Saunders, 10th July, 1821, 49 Sawers, 9th March 1850, 2, 48 Scoffier, 26th June 1783, 215 Scot, 21st July 1664, 218 19th Feb. 1736, 119. 196 7th April 1884, 44, 115, 317. 326 Scott. 6th Feb. 1750. 302 nth March, 1775, 44 28th Jan. 1823, 53 22d May 1845, 15, 342 nth March 1847, 74 16th July 1850, 870 19th Feb. 1851, 116 7th Feb. 1855, 97, 360 18th Jan. 1856, 871 21st Feb. 1856, 57, 145, 165, 244. 260, 262, 285 or Clark, 17th June 1856, 128 4 Pri. 846, 35 V. Kennedy, lOtli Dec. 1675, 58 V. Mitchell, 27th May, 1830, 211 V. Thomson, 6th Dec. 1854, 191 Scotstarvet, Feb. 1642, 216 Scottish Proviucial Assurance Co., 28th Jan. 1858, 300 ScougaU, 8th Dec. 1814, 13 ScouUer, 28th Nov. 1834, 848, 853 Scrymgeour, 16th Dec. 1678. 156 Seton, 21st March 1622, 213 28th Nov. 1855, 32 Sharp, 19th July 1671, 180 Shaw, 19th June 1750, 184, 252 'V. Steele, 28th Feb. and 11th March 1852, 27, 88 SlieritFs, 24th Jan. 1829, 88, 89 23d Feb. 1826, 817 Simpson's Crs., 18th Jan. 1750, 2 Simpson v. Doud, 1st Feb. 1855, 158, 163, 315, 388 Sinclair, 19th Feb. 1564, 212 19th Dec. 1828, 119 29th June 1889, 222 Skirving, 27th Jan. 1829. 196 Sloan, 18th Dec. 1844, 56. 114 SmaU, 21st Dec. 1822, 44 Smart, 29th June 1854, 26, 28 Smith, 25th June 1829. 326 15th May 1882, 34 3d Dec. 1850, 125 24th Jan. 1852, 83, 137 Somervell, 2d Jan. 1683, 338 Somerville, 17th June 1857, 40 Somerville's Factor, 6th Feb. 1836. 240, 247. 261 Soutar's Crs., 25th Nov. 1852, 84 Southern Bank of Scotland (Directors of), 10th July 1849, 48. 93 Spalding, 19th May 1809, 193 xxu LIST (iF CASES. Speire, 4th Julv \i. 26(» 3.1 Jnlv 1781. 191, 214 I3tli .\ov. 1H1'9. 125 10th .March. 1837. 258 9fh March 1839. 124 Thomson, 14tli Julv 1841, 81, 97, Kil 8th Julv 1846. 123, 129 26th Ni^v. 1847. 349 6th Dec. 1851, 348, 353, 363 21st Muv 1856, 363 10th July 1857, 26, 91. 222 V. Caniiibcll's Executors, 8th Dec. 1849, 211 V. Christi.\ 16th June 1852, 170 V. James, 12tli July 1855, 219 Thoirs. Jan. 1686, 189 Thorburn. 2d Julv 1846, 116, 363 18th ]\[arciri858, 3. 162, 264 Thri.pland, 7th June 1848, 168, 249, 265, 280 Tirias. Feb. 1682, 156 Tol.iuhoun. Feb. 1683, 219 Torrie, 31st Mav 1832. 189 Touch, 9th Nov. 1666, 190 Tovev. 11th March 1854, 28, 345 Towart, 14th May 1823, 34 Towers. 17th Feb. 1848, 269, 375 Towton, 8tli Dec. 1847, 50 Tunstall r. Boolber, 10 Sim 542, 77 Turnbull, 22d Dec. 1838, 39, 45. 48, 5f». 63, 262. 266 Tweedie, 2d Julv. 1836. 2, 4,68 16th Jan. i841,246 21st Nov. 1844. 378, 387 Urquhart r. Scott, 10th March 1^24, 129 Vere, 29th Feb. 1804, 236, 243, 258 Vernock, 7th March 1637, 216 Walker, 26th Julv 1761. 16.94. 131. 225 30th May 1837. 84. 89 ISth Jan. 1843, 384 18th June 1843. 163 16th Nov. 1849, 123 Walker Drummond, Lady, 11th March 1856. 7(), 91 13th June 1857. 31. 76. 92, 100 Wallace. 23d Julv 1674,60 20th Feb. 1707. 331 Walton, 17th Jan. 1850, 49 War.len, 7th July 1829, 240 8th Dec. 1829, 267 Wather.stone. June 1666, 164. 187 Watson, 16th Julv 1778. 119. 218 6th Feb. 1H23, 156, 182 6th Feb. ]H-2~. 54 21. St Feb. 1839. 56. 114 8d Dec. 18.39, 262. 266 21 st Nov. 1856, 43. 355 28th Nov, 1856, 43. 2t»6. 297 V. Shand, 15th D.c 1849. 68 LIST OF CASES. XXlll Watt, July 1724, 213 13th June 1854, 28, 31 23cl Feb. 1856, 120, 256, 258, 288 Webster, 27th Nov. 1849, 50, 79 V. Keid's Trs., 24th Nov. 1857, 206 Weir, 22cl Jan. 1704, 3 23d Jan. 1751, 157 8t]i May 1839, 33 Welleslev v. Duke of Beaufort (2 Russ. 20), 47 Wellwood's Trs.. 17th Dec. 1856, 126 Welsh, 14th Feb. 1778, 87, 96. 317 Wemyss, 27th Feb. 1637, 215 Wester Anstruther, 11th March 1853, 21 Western Bank Liquidators, 14th Dec. 1858, 325, 350, 391 White, 7th March 1829, 40 9th March 1849, 289 7th March 1855, 48, 240 V. Baugh, 9 Bligh, N. S. 181, 172, 204 Whitson, 31st Jan. 1832, 125 Whyte, 15th Nov. 1844. 342 V. Scott, 7th March 1854, 18, 95, 230 Wield, 29th Nov. 1851, 66, 188 Wight, 27th June 1837, 45, 47, 81 Williamson, 12th Dec. 1739, 292 28th Nov. 1856, 280 Wilson, Nov. 1683, 198 24th Feb. and 10th July 1688, 193 26th June 1789, 189 — 20th Jan. 1836, 339 30th Nov. 1849, 65, 124, 332. 389 Nov. 1856, 64 22d Jan. 1857, 53. 79, 123, 129 Wink, 21st Jan. 1851, 268 Winton, Earl of, 25th Jan. 1662. 190, 315 Wishart, 12 May 1837, 311 Wishaw Railway Co., 14th Jan. 1851, 5, 110, 111, 112, 113, 135, 141, 347, 367 Wotherspoon, 15th Dec. 1775, 27, 44, 88, 296 Wood, 31st May 1834, 50 19th May 1849, 81 19th July 1849, 50 6th March 1855, 38, 84, 237, 266, 283 6th March 1856, 244, 263 13th Feb. 1857, 247, 249 — 11th Dec. 1857, 98 Wren, 11 Ves. 377, 172, 204 Wright, 24th June 1680, 167 19th June 1701, 168, 252 16th Nov, 1849, 357 28th Nov. 1849, 83 Wrvghte V. Lindsay, 20th Nov. 1856, 76, 92 Wylie, 28th June 1850, 32, 90 Yeaman, 18th July 1707, 197 Yeats, 16th Feb. 1849, 385 York Building Co., 7th July 1778, 2 Yorkston, 13th Jan. 1697, 216 Young, 7th Nov. 1740, 44 i9th Feb. 1818, 50, 56 24th May 1821, 158, 197 8th July 1831, 81 11th July 1839, 59, 100 1848, 70 15th Nov, 1851, 92 11th and 28th March 1852, 4, 13, 66 V. Collins, 24th Feb. 1852, 41 V. CoUins 14th March 1853, 4, 41, 137 ADDENDA ET EKRATA. On page im, lino 13, iind page 104, line 2, /or 20 anil 21 \ ict., >\ 2<', read 20 and 21 Vict., c. 5(5. 180, lino V.K/or 1711 read 1717. 213, line 22, insert tlio reference " M. 2t;20." 299, line 28, ins.rt "Colliua v. B..y.I. Oth V\h. 1750. M. 4048/ • JUDICIAL FACTORS, &c. CHAPTEE I. NATURE OF OFFICE, AND CIRCUMSTANCES IN WHICH FACTORS ARE APPOINTED. A Judicial Factor is an officer of Court, to whose care, custody, and management, are entrusted estates and interests which either are matter of litigation, or have come to be without any legal or capable protector or administrator. The name. Judicial Factor, had its origin from the seques- tration of estates by the Court of Session, who thereby took the management of the sequestrated subject into their own hands, and delegated it to the care of a factor or steward named by the Court ; Eattray, 10th Aug. 1776 ; Br. Sup. V. p. 442. Its application is not now, however, so confined, and the nominee of the Court is called a judicial factor, whether the estate he is to manage have been previously sequestrated or not. The name of " manager" is applied to such a judicial officer in the cases of disfranchised Eoyal Burghs, and has been recognised by the Court in some other exceptional cases ; Crichton v. Lady Keith, 11th March 1857, 19 D. 713 ; and the late act, 21 and 22 Vict., c. 76 (2d Aug. 1858) :— The Titles to Land (Scotland) Act, 1858, in § 21 expressly recognises the expression "judicial manager" as applicable to the officer of whom we are to treat. A 2 ClUCUMSTANCES IN WHICH Curator bonui is another name apijliuJ to this ufliccr, whtii the estates over which lie is phiccd belong to a minor above pupilarity, or to a party hibouring nnder incapacity from lunacy or oUl age. Tliis distinction lias always been recog- nised in principle, although in practice it has often, through ignorance or carelessness, been lost sight of ; Sawers, 9th March 1850, 12 D. OO") ; Jaffrey, 20th Dec. l.Sol, 14 D. 202 ; Ferguson v. :^^un•ay, 20th Dec. 18o3, IG D. 2G0, 27th May 18o3, lo D. 082 ; Allen, 31st May 1855 ; not reported, but noticed in Allen, 24th Nov. 1855, 18 D. 07; Alcock, 2d June 1855, 17 D. 785 ; Morrison, 21st Feb. 1857, 19 D. 504. The object in view, in all such appointments, is as stated in one of the Acts of Sederunt by the Court of Session, " that tHe estates of such pupils or persons may not suffer in the meantime, but be i)reserved for their behoof, and of all having interest therein." Sequestration is resorted to as preliminary to the appoint- ment of a factor, where the legal right and title is in tho person of a j)arty, tho rights of whom, and of those deriving right through him in man}' cases, it is necessary in the mean- time to suspend ; York Buildings Co. 7th July 1778, M. 8380, affirmed in House of Lords ; Ferguson r. ]\Iurray, 27tb ^[ay 1853, 15 D. G82 ; Ersk. ii. 12, 55, and 58. Thus scrpies- tration is granted where a competition is ponding among creditors; Catcnach, 7th Juno 1707, M. 14342; Graham, 13th Feb. 1745, M. 14345; Simpson's Creditors, 18th Jan. 1750, M. 14345; Patcrson, IGth Nov. 17G4, M. 1434G ; Blarkwoods, 24th May 1781, M. 14340; Hutchinson, 14th Feb. 1833, 11 S. .".05; Twecdic, 2d July 183G, 14 S. 1078; Forbes, 5th July 1S3G, 14 S. 1003; Patterson, 18th Nov. 1837, IG S. 70, 13. F.417 ; or where a ranking or sale has been brought by tho hoir, or other steps taken to preserve pro- perty for creditors; Campbell, 15th June 1782, M. 14350; Thistle Bank v, Steven, 19 Dec. 1834, 13 S. 219 ; or where litigation ensues as to tho right of ])ropcrty in heritable sub- FACTORS ARE APPOLNTP:!). 3 jects ; Macalpine, lOtli June 1807, M. App. voce sequestra- tion No. 1. ; Eussell, 11th March 1847, 9 D. 989 ; or where questions arise as to whether a deceased party's estate is validly affected by a settlement ; Eraser, 15tli Dec. 1855, 18 D. 264 ; Thorhurn, 18th March 1858, 20 D. 829 ; and this whether any party has completed his title by infeft- ment or not ; Thomson, 9th July 1757, M. 4070 ; Elliot, 27th May 1843, 5 D. 1075. Sequestration can be obtained at any period in a litigation, it would even appear upon a mere motion ; Johnston, 17th July 1634, M. 14339 ; up to the time of and during the dependence of an appeal to the House of Lords; Ereen v. Bevoridge, 4th Dec. 1832, 11 S. 161. Where trustees have to be removed altogether, or superseded pro tempore, and a factor appointed on the estate, it is necessary to sequestrate the estate in their per- sons ; Home, 7th March 1833, 11 S. 538 ; MTherson, 19th Dec. 1840, 3 D. 315 ; Barry, 11th March 1847, 9 D. 917 ; Morris, 27th Feb. 1858, 20 D. 716. Where, in consequence of the insolvency of a corporation, a factor's appointment becomes necessary, sequestration must be obtained ; Beck, 5th March 1854, not reported, but noticed in Beck, 30th June 1836, 14 S. 1056. The estate in the hands of the partners or parties for behoof of a copartnership must be sequestrated in order to its judicial management ; Dixon, 20th Jan. 1832, 10 S. 209 ; in the same way that sequestra- tion is necessary where a pro indiviso property is put under a factor ; Morrison, 11th Dec. 1857, 20 D. 276. Writs were in use to be sequestrated ; Suity, 13tli De- cember 1684, M. 14340 ; Hamilton, 9th November 1697, M. 14340 ; Weir, 22d January 1704, M. 14341 ; but the prac- tice was discontinued as the Court thought very properly that there would be " no use for exhibitions via ordinaria if such summary applications were " encouraged. In the case of Bargany, 14th July 1702, M. 16319, a minor's person was sequestrated, and the custody of him was transferred a2 4 CIRCF^tSTANCES IN WHItH to a neutral J'arty, iu oiiIlt to ciisuif liis frofilma in elect- ing curators. The power of sequestration is thus exercised by the Court of Session, as the Supreme Court of Law and Equity ; Macalpine, 10th June 1807 ; Mor. 1). v. Seq. Ajip. No. 1., and in the exercise of this praetorian or equitable jurisdiction, to which it succeeded by the transference of the judicatory and other functions of the Privy Council of Scotland, the Court have been in the custom of appointing judicial factors, not merely where there was a previous sequestration, but iu every case where such interposition seemed called for; Bankton, i. 15, 15 ; Stair, iv. 50, 27, and ^More's Notes ; Erskine's Institutes, ii. 12, 55 ; Bryce, 25th Jan. 1828, 6 S. 425 ; Aff. 23d July 1828, 3 W.S. 323 ; Anstruther, 23d Dec. 1831, 10 S. 183 ; Eraser's Domestic Relations, ii. 269. But the foundation of that interference is necessity ; Hunter, 27th Dec. 1711, M. 14344 ; M'Lellan, 25th Ecb. 1832, 10 S. 375 ; a legal necessity, Maconochie, 3d Feb. 1857, 18 D. 366 ; as distinguished from expediency, Tweedie,2d I\Iay 1836, 14 S. 1078 ; and when the necessity ceases the oflice expires — as by the wards attaining puberty, or majority, or sanity ; or the management being otherwise provided for, r.r/., by the eervice of the legal tutor, as afterwards is in this, and will be in another chapter more fully exjilained ; or where seques- tration under the Jiankruptcy Statutes takes place ; Forbes 10th June 1845, 7 D. 853. The i»owers of the Court in this respect exist undimi- nished, and altogether independent of statute, although these have in various ways been incidentally recognised by the legislature, and the benefits of factorial appointments liave in special cases been communicated to creditors and others by statutory enactment. Appeal to the House of Lords against the Court of Session's decision is open in all cases ; Bryce, 23d July 1828, 3 W. and S. 323 ; Hamilton v. Littlejohn, 8th Jtily 1834, 7 W. and S. 380; Young, 11th FACTORS ARE APPOINTED. March 1852, 14 D. 746, and 14tli Marcli 1853 ; 1 Macqueen, 385. See Pupils' Protection Act, 12 and 13 Vict, c. 51, § 34. The Companies' Clauses Consolidation (Scotland) Act, 1845 (8 and 9 Vict. c. 17, §§ 5G, 57), authorizes applica- tion by mortgagees to the Court of Session (by 20 and 21 Vict. c. 56, § 3, to the Lord Ordinary), for a judicial factor to receive the whole or part of the tolls of the undertaking indebted to them ; and in Acts of Parliament, passed previous to the before-mentioned General Act, provisions of a nature more or less similar occur. In various Leasing Bills the proprietors of the railway were invested with remedies similar to those conferred on mortgagees by the Companies' Clauses Consolidation Act. The Court have, on applications under these acts, appointed factors, but only when all the statutory pre-recpiisites concurred, and there was no personal exception pleadable against the petitioners ; Garnkirk Kail- way Co. 10th June 1850, 12 D. 989 ; Baird, 13th Nov. 1850, 13 D. 36 ; Wishaw Eailway Co. 14th Jan. 1851, 13 D. 464 ; Baird, 28th Feb. 1851, 13 D. 795. There are, it is believed, many other Personal Acts in which advantage has been taken, in a way similar to that adopted by railway companies, of provisions relating to the appointment of a Judicial Factor for behoof of their creditors, e.j/., the Lands Improvement Company's Act, 1853. (See infra^ Chapter II.) In England the Court of Chancery has officers similar to Judicial Factors (per Lord Chancellor, in Hamilton v. Little- john, 8th July 1834, 7 W. S. 380, and indeed the Scotch Factor has been, by the Court of Session, termed a Eeceiver ; Duke of Roxburgh, 2d March 1824; 2 Shaw's Appeal Cases, 18), but they are denominated " Receivers," and " Receivers and Managers," according to the nature of the duties entrusted to them (Daniell's Chancery Practice, 3d edition, p. 978 ; Bennet's Receiver, chap. ii. section 2). The English Companies' Clauses Consolidation Act (8 and 9 Vict. c. 16, § 50-54), in making provit^ion for mortgagees' 6 ClUCUMSTANCES IN WHICH sccuritv, gives tlie power of upiioiiitiiig receivers to Justices of the Peace. This remeily, it has been decided, is altogether exclusive of the application competent to the mortgagee for a Chancery receiver, and the mortgagee may choose which remedy he pleases; Fripp v. Chard llailway Co., 22 Law Journal, 1084. On the same principles it is thought that the power of the Court of Session to appoint a Judicial Factor over any undertaking to which a special Act of Parliament applies, remains intact — per Lord President, Glasgow and Gam- kirk Railway Co., 28th May 1850, 12 S. and D. 944; Glasgow and Barrhead Railway Co., 13th June 1850, 12 S. and D. 1014. The authorities afterwards quoted, which settled that the statutory jurisdiction of the Lord Ordinary, as to factors under the late Bankrupt Act, did not exclude the ai»pointmcnt of factors by the Court, were decided on the principle here enunciated ; see also Maxtone V. Muir, 9th July 1845, 7 D. 1006, and the English Cases of Dewry v. Barnes, 27t]i Nov. 182G, 3 Russ. 94 ; Knapp v. Williams, 4 Ves. 429 ; and Dumville v. Ashbrooke, 3 Russ. 98, referred to at the end of this chapter. The factor authorized by the Companies' Clauses Act (for instance) only carries tolls or sums specially mentioned, whereas a factor at common law would have the management, direc- tion, and superintendence of the undertaking over which ho was appointed. By tlie Act of Parliament passed on 28th July 1849, " for the better protection of the property of j)ui)ils, absent per- sons, and person.^ under mental incapacity, in Scotland" (12 and 13 Vict., c. 51), the powers of the Court of Session regarding Judicial Factors were fully recognised. Its ol»ject was to prevent the occurrence of irregularities in the conduct of those factor.-i to whom its provisions ai(i)lied, and the con- sequent loss to the funds and estates under their charge, and to tlip parties interested therein. Tlir- moans f .r .itt. lining FACTORS ARE APPOINTED. 7 this object are more stringent provisions, relative to the accounting by the factors, and tlie appointment of an Accoun- tant of the Court of Session, to wliom the supervision of these officers is committed, and who is armed with special power to apply to Lords Ordinary, and to obtain from the Court summary remedies against parties committing irregularities. The judicial factors to whom the provisions of the act apply are those loco tutoris, and loco absentis, and to curators bonis (§§ 1 and 30) ; Morrison, 21st Feb. 1857, 19 D. 504. These provisions will come afterwards to be more particularly discussed. As regards the procedure under this act, it is proper to remark that all petitions, applications, and re- ports, have been transferred from the Court to the Junior Ordinary, by 20 and 21 Vict., c. 56, § 4. (See infra, Chap. V.) The '* Bankruptcy (Scotland) Act, 1856" (19 and 20 Vict., c. 79), has, with the view of giving statutory sanction to the appointment of factors on the estates of parties deceased, enacted (§ 164) " that it shall be competent to one or more creditors of parties deceased, to the amount of one hundred jjounds, or to persons having an interest in the succes- sion 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, or in the event of such parties not accepting or acting, to apply by summary petition to either division of the Court for the appointment of a judicial factor ; and after such intimation of the petition to the creditors of the deceased and other persons interested, as may be considered necessary, and after hearing parties, the Coart may appoint such factor, subject to such conditions as to caution and such other conditions as the Court may provide by Act of Sederunt." The first case under this statute was Macfarlane, 6th March 1857, 19 D. 656. The petitioners there, although the children of the intes- tate, had a statutory title as creditors, and thus relieved the Court from difficulties, which they foresaw would arise in 8 CIKCUMSTANCES IN WUICH applications by parties iutercsteJ in succcssiuus, but not creditors of tlie deceased to the amount required by the act. One, and perhaps the most important, of these diffi- culties would arise, whore the parties petitioning as interested in the succession are also those who can take up the succes- sion ; and there is hence involved a question as to how far it was intended that the statute should interfere- with the common law, as to the obligations on legal successors to take up and administer the estates of parties deceasing. The Court, it is thought, will be very unwilling to give the statute such a construction as will throw upon them the task of finding administrators for every estate in Scotland, In connection with this matter another question arises — as to what will entitle the Court to hold that the parties having power to manage the estate are not to accept and act. Lord Deas, in the above-mentioned case of ]\Iacfarlaue, alludes to the case of such parties being in pupilarity, and it is his opinion that in the case, where the pupil representa- tives have no legal guardians, the Court ought to hold that they are not to act as such, and hence to find that the way is clear for a factorial appointment. This case is further valuable as showing that the Court, in appoint- ments under the statute, as well as ex nohili ojicio (as we shall afterwards see), will not appoint a factor in order that he may deal with tlic estate according to any agree- ment or otherwise than according to the legal rights and interests of all jiarties. In the case of Mackay, 10th Feb. 1859, not j-et reported, the Court liad presented to them a petition for a fa<^tor, under the Bankruptcy Act, on an estate where a factor at common law had already been appointed. The reason a.'^signcd for the proceeding was that in regard to the renunciation of a lease, and other matters, a factor under the act could bo empowered to act merely upon considerations of expediency, and not after instructing a legal necessity, as the common FACTORS ARE APPOINTED. 9 law factor was required to do. Lord Kinloch felt difiBiculty in ordering intimation of tlie one petition pending the other appointment ; but the Court instructed him to do so, — as, if the statements in the petition were correct, there was an evident advantage to he gained by the change proposed. Factors appointed under this statutory provision are to be under the control and direction of " the Accountant in Bank- ruptcy," whose powers, in reference to applications to the Lords Ordinary and the Court, are very similar to those above alluded to as belonging to the Accountant of the Court of Session. Petitions for factors, and all applications or re- ports under this act are to be brought before the Junior Lord Ordinary in Session, or the Lord Ordinary on the Bills ; and before the latter in vacation ; 19 and 20 Vict., c. 79, §§ 4 and 161 ; 20 and 21 Vict., c. 56, §§ 4 and 10 ; Act of Sede- runt, 25th Nov. 1857, § 30. This subject is fully discussed in Chapter Y., on Procedure. It is to be observed that in the former Bankruptcy Act, 2 and 3 Vict., c. 41, § 14^ the power of appointing a judicial factor to admiinister the estate of a deceased debtor was given to the Lord Ordinary on the Bills, and not to the Court of Session. The application, moreover, on wWch such appointment might proceed was to be made by the creditor petitioning for sequestration of the deceased debtors' estates, and by written note in the process of sequestration without any intimation ; Gillespie, 21st Nov. 1840, 3 D. 133. The policy of this provision was evidently to attain the pre- servation of the estates for behoof of all concerned during the period which might, if the successor did not consent to sequestration, elapse between the application for and awarding of sequestration. But this statutory jurisdiction did not prevent recourse to the Court for a factor, pending the granting of sequestration on a petition by a creditor or creditors ; Hope, 26th Feb. 1850, 12 D. 912 ; or even on the whole, or part of the bankrupt estate after sequestration had 10 CIKCUMSTANCES IN WlllCn beeu awiirdua; Scott, lltli ^larch 1647, [) D. l>'2i ; luglis, 2Gth Feb. 1850, 12 D. 913 ; Esson, 19th July 1851, 14 D. 10. These decisions i)rocecd on the priuciijle that a statu- tory jurisdiction is not exclusive of the conunon law powers of the Court, the authorities in support of which have beeu already referred to in connection with the rights of Railway Mortgagees. This object, under the present Bankruptcy Act, is the subject of special provision, and the IGth section relates to it. By this section the appointment of a Judicial Factor is one of the means contemplated, and the Court, to which the petition for sequestration is presented, is vested with the power of appointing him " on special application by a cre- ditor either in such petition, or by a separate petition, with or without citation to other parties interested, as the said Court may deem necessary, or without such special applica- tion, if the Court think proper." Petitions for sequestration can be presented either in the Bill Chamber or to the Sheriff of any county : and hence the above power of appointment of a Judicial Factor, with or without an aj>i)lication, is com- petent to both of these Judges ; only, if the proceedings " have been made or ordered by the Sheriff, they may be recalled by the Court of Session on apiK'ul taken "in the manner provided by the Statute. It is very probable that judicial factors or managers may be appointed also under the powers conferred on the Lord Ordinary in the Bill Chamber, and the Sheriff, by the 37th section of the last-niontioned act. Whore an aj)])lication for a sist of sequestration has been granted, " the Ijord Ordi- nary or the Sheriff may, on the ap])lication of any creditor, make such arrangement for the interim management of the estate as lie shall think rea.sonablc, if any shall appear to be necessary." The Act of 20 and 21 Vict., c. 5r, (25th August 1857), has been already referred to. Its general object is, as it8 FAOTOKS ARE APPOINTED. 11 title declares, " to regulate the distribution of business in the Court of Session in Scotland ;" and hence the enactment, as to the Junior Lord Ordinary in Session, and the Lord Ordinary on the Bills in vacation, dealing with and disposing of " 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," — operates only a change as to the department of the Court in which the proceedings in certain factories are to originate, and the appointment of such factors or curators bonis is to be made. Accordingly, the Lord Ordinary's judgments are, unless brought under review, declared to (§5) " be equally valid and effectual as a judgment of either division of the Court to the like effect, according to the present law and practice," The review alluded to is analogous to that in ordinary actions before the Court ; but it applies only (§ 6) to interlocutors on the merits, and from these are excepted such as are pronounced by the Lord Ordinary after a report to either division of the Court, and in consequence of their instructions. The most important section of this statute, in regard to the appointment of factors and curators honis, is the 10th, and by it the Lord Ordinary on the Bills during vacation has conferred on him the same powers as are by the act con- ferred in relation thereto on the Junior Lord Ordinary. Permanent, instead of interim appointments can thus now be made in the Bill-Chamber. Reference will again be made to this enactment in treating of what were formerly interim appointments. The exorcise of a power very similar to that possessed under the Bankrupt Statute, conferred by Act of Sederunt (10th July 1839) prepared in terms of the 1 and 2 Vict., c. 119, § 32, on sheriffs in advocations, often results in their appointing parties to take interim possession for behoof of all concerned, and to uplift sums, rents, &c. ; see case of 12 CIRCUMSTANCES IN WHICH Greeuhill v. Gordon, llth March 1823, 2 S. 256. In all advocations of interlocutors pronounced by sheriffs, it is competent for them to regulate in the meantime, on the application of either party, all matters respecting interim possession, having due regard to the manner in which the interests of the parties to the action may be affected by the final decision of the cause ; M'Glashan's Sheriff Court Prac- tice, by Barclaj'', p. 448. Finality as regards such regulations is imposed by the 24th section of the late Sheriff Court Act, 16 and 17 Vict., c. 80. This power of appointing a manager in advocations is merely supplementary of a power, possessed by sheriffs at common law, of appointing a party to protect subjects and interests involved in litigations before them ; Drysdale v. Lawson, llth March 1842, 4 D. 1061. The Court of Session may appoint a factor to protect the estate involved in a litigation which has been carried by ap- peal to the House of Lords ; Granger, 16th July 1857, 19 D. 1010; Geils, 28th Nov. 1857, 30 Jur. 81; as by 48 Geo III., c. 151, the division to which the cause belongs, or four Judges of the Court (Young, llth March 1852, 14 D. 746; Granger, supra), have power to regulate all matters relative to interim possession, or execution according to their discretion and with regard to the interests of tlie parties ; and touching the regulations so made as to interim possession, &c., it is not competent to stop the execution of such regulations by appeal to the House of Lords ; Freen v, Beveridge, 4th Dec. 1832, 11 S. 161. The origin of this power of regulating possession or execution, pending appeal, is the subject of some interest- ing remarks in Lord President Ilay Campbell's preface to the collected edition of the Acts of Sederunt. The power of sheriffs, under the Act of Sederunt (1839) above men- tioned, seems to be similar in its nature. But the Court of Session, in by far the greater proportion of cases, allow execution of their decree pending appeal, on security for FACTORS ARE APPOINTED. 13 repetition or delivery of the sum or subject in dispute being found by the successful litigant, even in cases where their appointment of a factor has been taken to appeal ; Young, 28 th March 1852, 14 D. 881. This power of appoint- ing a factor pending an appeal is perhaps the less likely to become frequent, that by the 13th section of the Court of Session Act, 13 and 14 Vict., c. 36, no petition of appeal to the House of Lords is to be held as removing a case from before the Court as regards any point or points not neces- sarily dependent on the interlocutor so submitted to review, in reference to which the Court may proceed as to them appears to be expedient and proper. In regulating matters relative to interim possession or execution, the Court exercised their statutary powers by delegation, and remitted to the Lord Ordinary to proceed as he should see cause, in Scougall, 8th Dec. 1814, F. C; but in the case of Granger, supra, the Court seemed to think that they had no power of delegation. In regard to fac- torial appointments generally, where circumstances seem to warrant it — such as the intervention of the long vacation, or a disagreement as to the party to be appointed factor, the Court will delegate the power of appointing a factor ; Gordon, 28th June 1839, 1 D. 1135 ; and though such dele- gation is generally to the Lord Ordinary on the bills (Cochrane, 21st May 3849, 12 S. and D. 147; Jaffray, 19th July 1851, reported under date 20th Dec. 1851, 14 D. 292) no restriction on this power seems to have been acknow- ledged ; Lord Hyndford and others, 3d Dec. 1769, M. 14347. If the Court rise before the Lords Ordinary, they can authorize one of them to make an appointment. Ap- pointments by delegation are generally brought again be- fore the Court for confirmation ; Taylor, 18th July, 1857, 19 D. 1097 ; but this may be unnecessary from the terms of the interlocutor containing the delegation. The Junior Lord Ordinary has no power of delegation under the Act 14 llUCrMSTANCES IN WITiril 20 and 21 Viot., c. 20 : Imt lie may, iiiulcr § 5, report tlie caso to the Court, who may thus dispose of it. Tlic Lord Ordi- nary on tlie Bills during vacation does not seem entitled, under section 10, to deal with any petition not " enrolled or brought" before himself, as his powers in regard thereto are the same with those conferred on the Junior Lord Ordinary, and he has only power to deal with cases enrolled and brought before himself ; accordingly, it was found that peti- tions, which had been brought before the Court previous to the passing of the act, could not be dealt with by tlic Lord Ordinary; Horn (Taylor's Trustees), 14th Nov. 1857, 20 D. 52. Lords Ordinary and inferior judges do sometimes appoint parties to uplift sums, rents, &c. ; but unless the name is conferred by special statute these parties are not entitled to be considered "judicial factors," as these can only be appointed by the Court of Session directly or by delegation ; Macalpine, 10th July 1807, F. C. 6G4 ; Grcenhill v. Gordon, nth March 1823, 2 Sand D. 256 ; Shand's Practice of Court of Session, ii. GOl. Professor Bell alludes to the practice of claimants in an ^\.V. meeting to choose a factor, to whose appointment the Ordinary in the case will interpone autho- rity ; but this course is not now commonly followed (Com. ii. 300) ; but sec a case where a factor was appointed ; Christy v. Paul, 10th July 1834, 12 S. DIG. The only ex- ception to this is the power of appointing judicial factors, that is possessed at common law by the Lord Ordinary in the Bill Chamber during vacation, which, although not repealed, is virtually in disuse in conserpiencc of the j)rovi- sions of the act 20 and 21 Vict., c. 5G, § 10, to be immedi- ately noticed. In an application for such an appointment, it must be clearly shown that there are circumstances to warrant his Lordship's interferenre ; Denham, 1st July 174G, M. 7435 ; Macalpine, «w;)m; P^Uis ,14th Dec. 1836, 15 S. 262 ; Baillie and Douglas, 14th Nov. 1838, 1 Dunlop FACTORS ARE APPOINTED. 15 15 and 16 ; Brown, 11th June 1852, 14 D. 856. At best, such appointments in the Bill Chamber are only ad interim and require to be confirmed and renewed by the Court of Session on its resuming its sittings ; Denham, Ellis, Baillie, and Douglas, supra ; Scott, 22d May 1845, 7 S. and D. 638 ; Raeburn, 25th Nov. 1851, 14 D. 310 ; Fraser on Domestic Relations, ii. 276. The necessary proceedings to be adopted in these cases will be detailed in a subsequent chapter. The statute 20 and 21 Vict., c. 56, § 10, has conferred jurisdiction upon the Lord Ordinary on the Bills during vacation in regard to petitions for the appointment of factors loco tutoris, curators bonis, and judicial factors, and under this act he is armed with the same powers of deciding on, and disposing of these, after investigation, or otherwn'se, and also upon report, as the Junior Lord Ordinary during session possesses. It would seem that the judgments of the Ordinary on the Bills are to be open to review in precisely the same way as are those pronounced by the Junior Lord Ordinary ; but a difficulty may arise under section 6th as to boxing a reclaiming note wdthin eight days of the judgment. Appointments under the statute during vacation are not ad interim ones, unless declared to be so, as are those appoint- ments wdiich the Lord Ordinary on the Bills can make at common law. It cannot be doubted that both the Junior Lord Ordinary and the Ordinary on the Bills have power to make interim appointments. By section 4 of the last- mentioned Act, petitions under any of the General Railway Acts, or under the Lands' Clauses Consolidation (Scotland) Act 1845, or under any Local or Personal Act, are directed to be brought before the Junior Lord Ordinary ; and in so far as the appointment of judicial factors is so conferred, that can now be compe- tently sought from the Lord Ordinary on the Bills during vacation. But previously, wdiere the appointment of a judi- cial factor ad interim w^as sought from the Lord Ordinary IG CIRCUMSTANCES IN WHICH on tlic Bills, under the Companies' Clauses (Scotland) Act 1845, it was held that, as such appointment could proceed only in virtue of statutory powers conferred upon the Court of Session, the application in the Bill Chamher was incom- petent ; Glasgow and Garnlcirk Kailwuy Co., 28th Iilay 1850, 12 S. and J). 944. But where there had been an appointment of a factor under the Companies' Clauses Act, and he died during vacation, the appointment of a successor ad infcriin was made l»y the Lord Ordinary in the Bill Chamber, and the party so appointed obtained confirma- tion and a renewal of his appointment on the meeting of the Court ; Trimrose, 'Jlst Juno 1851, 13 S. and D. 1214. The principle on which the decisions were reconciled was, that, although the Court of Session alone had the power of deter- mining whether the contingency had arrived on which the proprietors of the railway were to be ousted from possession, and of so ousting them, yet, the company having been ousted, and the estate put in manibus curia', the factory was a perpetual appointment until recalled by the Court. The Lord Ordinary on the Bills was held only to have nominated an interim successor to the jtarty in whom alone was vested the charge of the revenues of the railway; and if such an interim appointment were not comi>ctent, tliu anomaly would occur of a railway being all the time under judicial manage- ment, and yet having no one to take charge of it. The Court of Session have also been in the habit of appointing parties as judicial managers (in reality and some- times called /m.7or.y a royal walnut. There are circumstances, however, wliich liavc been held to justify the Court's interference with the aflairs of burghs, other than the forfeiture of municipal privileges. Where the corporation becomes insolvent, the Court will, on the application of its creditors, sequestrate the burgh property, and appoint them to meet and name a party to be appointed factor thereon ; and on receiving intimation of the party selected to the office, the Court will, if he be unobjection- able to them, nominate the creditors' nominee to be judicial factor ; Beck, 5th March, 1824 (not reported, but noticed in Beck, 30th June 1836, 14 S. 56). A royal burgh cannot be sequestrated under the Bankrupt Acts ; Ilogan, 19th Feb. 1853, 15 D. 417. From our remarks it will be seen that the cases, in which the Court exercises the jurisdiction of which we are treating, divide themselves into two great classes. Firstly, there are the appointments authorized or sanctioned by statute ; and secondly, there are the cases in wliicli the appointment pro- ceeds purely ex nohili oj)icio ; and in these latter cases, the onlyjustification of the Court's interference lies in legal neces- sity. What constitutes a case of legal necessity may be best shown by a reference to the leading cases, in which it has been recognised to have existed. With this view, it will at once be perceived that it is unnecessary to enter into any further detail of the cases in Avhich the appointment of managers of burghs has been held to be called for, as the leading cases on that branch of our subject, and tlie principles, wliich guide the Court in making such aitpointnicnts, have already had a rather full consideration. But as regards other factorial appointments, the circumstances which are held to justify apj)lications for them demand particular notice. FACTORS ARE APPOINTED. 25 Trust Estates. — A judicial factor has at length come to be recognised as the proper officer to be appointed, in order to the management of estates left under trust, whether such trust be constituted by settlements, or other mortis causa deeds ; or by marriage contracts, or other deeds inter vivos ; or for the benefit of third parties, — creditors, &c. — in any way, where the machinery provided for the trust management has become inoperative, or the trust would otherwise fail of fulfilment. But this does not touch the principle, that if once a trustee accepts office, he cannot get rid of it b}^ mere caprice ; — as is reported in the case of Carstairs, 20th Jan. 1 776, 2 Hailes 678, — " Trustees must not imagine that, whenever they are tired of their office, they can slip their necks out of the collar and leave the trust to be extricated by the Court." Thus, where under the deed there are provisions for the assump- tion or nomination of trustees in order to continue the man- agement, these must be allowed to be operative, and cannot be superseded by any judicial administration, which, it is always presumed (until the presumption becomes an absolute impossibility), the trust-deed was meant toexclude; Hamilton V. Littlejohn, 15th Dec. 1832, 11 S. 217 ; reversed in House of Lords, 7 W. and S. 380. See a case of Roughead,^30.sifea. Considerable difficulty was at first felt regarding the pro- priety of the Court's interference to supplement the will of a party deceased by the appointment, for its fulfilment, of a factor or trustees, where no delegation or nomination by the deceased was made ; and to the contingent benefits arising from such a failure, it was very plausibly maintained, that the heirs both in heritage and in mohilihus were legally entitled. In one case, Dick, 22d January 1758, M 7446, this principle was given effect to ; but sounder principles soon asserted their sway, and the power of the Courts to make wills and otlier settlements operative b}^ the appoint- ment of an officer, and in some cases of numerous trustees, as afterwards noticed, was soon recognised. The cases 26 CIRCUMSTANCES IN WHICH of the King's College of Aberdeen, in reference to Ogilvie's mortification, and of tho Marischal College, in reference to Ramsay's mortification, and whicli, though distinct, have been confused by Lord Elchirs in his Decisions and Notes ; (King's College v. Ogilvio ; Elchies' Decisions v. Trustees, No. 11 ; and Notes v. Jurisdiction, No. 21 ; Marischal College V. Ramsay; Elchies' Decisions v. Jurisdiction, App. ii. No. 21, both under date, 27t]i Jan. 1741) ; and also the case of Campbell, 2Gth June 1702, M. 7440, are among the earliest of that class of decisions ; see also Macdowall, 29th Nov. 1789, M. 7453. In the general case, a testator has nomi- nated parties as executors or trustees for executing his tes- tamentary intentions who have failed ; but in principle, there seems no difference between such a case, and the case where moveables are left to be distributed under a will con- taining no nomination ; Dundas, 27th Jan. 1837, 15 S. 427 ; Town of Dundee v. Morris, 1st May 1858, III. l^Iacq. 134 ; or where an obligation by a party on his heirs has been left in favour of a third party without fixing who are to be trustees to fulfil it ; Melville, 8th :\Iarch 185G, 18 D. 788. Where trustees have been named, but have failed through having predecea.sed the testator, a factor will be appointed to fulfil the purprtscs of the settlement thus rendered inoper- ative ; Cairns, 19th Jan. 1838, 16 S. 335 ; or having sur- vived the testator, where the trustees have died without accepting or acting; Smart, 29th June 1854, 10 D. 1004; or where they have declined to act ; Alexander, 27th Feb. 1824, 2 S. G21. A factor will likcwi.se be appointed where, after tlieir accepting and acting in tho execution of the trust, the tnistces all die without bringing the trust to a conclusion; Douglas, 14th Dec. 1839,2 D. 238; Ram.say, 10th Dec. 1840, IG F. C. IGO ; Thomson, 10th July 1857. 19 D. 964 ; or where, in consequence of powers of resigna- tion conferred by the trust-deed, all the trustees resign in order to be relieved of the further trust-management;' FACTOKS ARE APPOINTED. 27 Broughton, mentioned in M'Kenzie v. Grieve, 20th Dec. 1828, 7 S. 223. In one case, where a trust had failed through the trustee's death, a creditor, unsuccessfully- it may well be supposed, maintained that, as she was infeft in the whole estate, and there was no competition regarding it, there was no room for the Court's interference ; Burnett, 24th Jan. 1829, 7 S. 314. Even in the case where all the purposes of the trust had been fulfilled before the trustee's failure, a creditor created in the course of the trust-management, in respect that a continuance of the trust was necessary to en- able him to get payment of a debt to him secured on the estate, successfully applied to the Court for a factor ; Shaw v. Steele, 28th Feb. 1852 ; 24 Jurist, 26G, and 11th March 1852, 14 D. 762. In some cases, the Court, instead of appointing a judicial factor, nominated parties as trustees under the deeds the trustees wherein had failed ; and these new trustees found caution like factors ; Eraser, 1st March 1837, 15 S. 692. Such appointments, although the beneficiaries under the trust-deed did not consent thereto, were solemnly de- cided to be within the power of the Court in the case. Lord Melville v. Lady Baird Preston, 8th February 1838, 16 S. and D. 457. The appointment of a single party as judicial factor came, however, to be the course generally adopted, as it appears to have been in the older practice of the Court ; Wotherspoon, 15th Dec. 1775, M. 7450 ; Grant, 2d March 1790, M. 7454 ; and it possessed obvious advantages in the control which the Court had over their officer ; whereas the trustees so appointed proceeded to act in the trust in the same way as if they had been nominated in the deed. But in the case of Macaslan, 17th July 1841, 3 D. 1263, and 16 F. C. 1319, trustees were appointed under a deed of settle- ment, which contained no power of assumption, in respect all the original trustees had failed. The Court have again returned to the appointment of factors on testamentary 28 CIRCL'MSTANCIiS IN WHIell estates in prcfereuco to trustees ; Bain, 30th June 1846, 8 D. 942; Komp, 20th June 1848, 10 D. 14oG ; Patrick, 6tli March 1850, 12 1 >. I'll ; ^Vatt, 13th June 1854, IG D. 941 ; Smart, 29th June 1854, IG D. 1004. An application was made, on the failure of trustees under a marriage contract, for a nomination of new trustees or a judicial factor, and the Court declined to appoint the trus- tees, but granted a factor ; Nicolson (1st Div.) 29th Jan. 1850, 12 D. 911. The Second Division of the Court had made in one case a distinction between trust-settlements and trusts in marriage-contracts, on the ground that enough of radical riglit remained in the spouses to make a nomina- tion of new trustees in room of those who had failed, and that the remedy competent to the spouses at common law, by way of declarator, was not to be superseded rashly ; which seems to have been the view which the Court were inclined to support in a similar application in an early case ; Moir, 6th July 182G, 4 S. 808. In the later case alluded to, the petition was at the instance of the parties to the contract, and their chihlren, the only parties interested under it. On it being refused, recourse was had to the suggestion of the Court, and the spouses rai.sed an action of declarator, con- cluding to have it fuund and declared that llioy had the power, and were entitled to make a nomination and ap- pointment of new trustees, with all the powers, i)rivileges, rights, and faculties conferred upon the original trustees by the contract of marriage ; in which action their children were called as defenders. A cunitor ad Utnn was named to them, and having minuted his acquiosrenre, the Court, on the roj)ort of the Lord Ordinary before whom the action was brought, decerned in terms of the summons; Lindsay v. Lindsay, 19th June 1847, 9 D. 1297. It is understof)d that the course here adopted has not been followed in practice except in one case ; Tovey v. Tennant, 11th March 1854, 10 D. 866 ; when the First Division, "in respect of the case of Lindsay," FACTORS ARE APPOINTED. 29 decerned as concluded for ; and indeed the principles, on which depends the validity of antenuptial contracts against acts which would otherwise affect the property and rights of the spouses, are opposed to the existence of any power whatever in them ; 1 Bell's Com. 35. Accordingly, a factor was appointed under a marriage contract, where the trustees' powers were limited to the protection of the life- renter's interest, and did not include that of the fiars — wdio were the children nati et nascituri of the marriage ; Muller, Nov. 1851 (not reported, but noticed in Muller v. Dixon, lltli Feb. 1854, IG D. 53G). A factor was appointed on the trust-estate constituted under an antenuptial contract of marriage, where both the spouses were alive, and all the trustees therein nominated declined to act ; Alcock, 2d June 1855 (1st Div.), 17 D. 785; MacGeorge, 8th March 1856, 18 D. 792 ; Davidson, 18th June 1857, 19 D. 862 ; and also in a case, where the contract contained no nomination of trustees, but there were evidently interests which a trust- management could alone protect ; Melville, 8th March 1836 (1st Div.) 18 D. 788. The protection of any tangible legal interest which would, but for the Court's interference by a factorial appointment, be destroyed or lost, is the object which they have in view in all cases. In further illustration we may quote the case of Barwick, 27th Jan. 1855, 17 D. 308, where a factor was appointed " for the special purpose of attending to and pro- tecting the interests under the deed" of settlement, which affected the moveable estate only. It contained a nomina- tion of trustees and executors who did not accept, and the relict, in consequence, obtained confirmation which vested the whole moveables in her ; but as they were so vested under the legal obligation to answer all just claims against the executry, and because she challenged the validity of the will, the Court would not give effect to her opposition to the application. A factor on heritage was appointed, although 30 CIRCl'MSTANCES IN WHICH tlio heir-at-law opposed, on tlie same pjounds in Fraser, 15th Dec. ISoo, 18 D. 2G4. These two hist cases seem at first sight to be inconsistent with the refusal of the Court to ap- point a factor on a trust-estate where the trustees had failed, and the estate of the truster was in the hands of his legal representative, in the case of Fraser, lltli March 1854, 16 D. 8G8. But there the revocation of the trust-deed, under which the petitioner claimed as a beneficiary, had been sustained as a defence to his claim in the inferior Court where he preferred it, and tlic application was evidently in- tended to raise a confiict of jurisdiction by which he might benefit ; or at any rate it was an attempt to try the validity of a deed in a summary way, which is not a competent shape for trying such questions ; Cunningham, 15th Jan. 1839, 1 D. 3G2. Where the real object of the petition for a factor on the estate conveyed by a trust-disposition and settlement, under which the trustees did not accept, and which was challenged as contra tabular nuj^tialcs, was to get a party to defend the trust-deed at the expense of the estate, although the peti- tioners alleged the protection of their interests as the ground for seeking a factor, the Court refused to appoint one. Under the marriage-contract between the truster and her husband, the property subjected to the trust was conveyed to the sur- vivor of the spouses in liferent and the children in fee, and there being thus parties in the legal right of the subjects, and entitled to the possession and enjoyment thereof, the Court refused to listen to any })lea of contingent rights under a trust-deed executed evidently in fraudcm of the husband and children of the marriage, and admittedly under reduction on this ground ; Marshall, 5tli Jan. 1S51), 21 D. 203. Where the trustees in two trusts were tlui same par- ties, but the trust interests were in the meantime antago- nistic, the Court appointed a factor in one of the trusts to extricate matters ; Ilalcomb, 9th July 1853, 15 D. 861 ; and FACTOKS ARE APPOINTED. 31 where the trustees' personal interests, in consequence of claims against them on account of alleged failure in duty, were opposed to those of tlie beneficiaries, a factor was appointed on the trust-estate ; Anderson, 29th Jan, 1857, 19 D. 329. The contentions, which not unfrequently arise for trustee- ships, and in the management of a numerous body of trus- tees, will not be allowed to operate to the disadvantage of parties interested ; and the Court find an apt remedy for this state of matters by sequestration of the estate (supra, p, 2), and the appointment of a factor to supersede the trus- tees in their ofiice ; Home v. Hunter, 7th March 1833, 11 S. 538 ; Laird v. Miln, 7th Dec. 1833, 12 S. 187 ; Adie v. Mitchell, 19th Dec. 1835, 14 S. 185 ; Halkett's Trustees, 23d May 1851 (not reported). In the case of Forbes, 14th Feb. 1852, 14 D. 498, an appointment of this kind took place, and the necessity arose from the trustees having differed as to their powers, and having declined to concur in executing deeds of entail in terms of the trust-deed ; but although, in consequence of the trust being reckoned Scotch the appoint- ment of the factor was asked on all the property both in Scotland and in England embraced in it, the Court would not interfere with the trust property in England, leaving it to the control and management of the Court of Chancery. See also Lord President's remarks in Petition, Walker Drummond, 13th June 1857, 19 D. 859 ; also Taylor v. Taylor's Trustees, jjostea. Where absence ammo remanendi, or incapacity of an accepting trustee renders management by the other trustees impossible, or even renders their powers extremely doubtful, a factor w411 be appointed to manage the trust-estate ; Nis- bet V. Eraser, 31st Jan. 1835, 13 S. 384, 10 F. 209 ; Dean, 17th Nov. 1852, 15 D. 17 ; Watt, 13th June 1854, 16 D. 941. The absence from Scotland of the surviving trustees 32 CIRCUMSTANCES IN WHICH named in a deed will not of itself warrant an application to have the trust-estate put under judicial management ; Dun- can, 23d June 1849, 12 D. 913 ; but whore, of two trustees furth of Scotland one was hankrupt and had trust funds mixed up with his own, and the other was due L.200 to the estate and declined to act as a trustee any longer, the Court appointed a factor; Fraser, 11th March 1854, 16 D. 867. A bequest for a charity was left to trustees, who were to be the minister of tlic parish, the proprietor of a certain estate, three other heritors, and two tradesmen to be chosen in the manner provided by the deed, and in the course of management a security was taken to the minister and six other parties as trustees, but subsequently one of these parties died. The Court were then applied to by the sur- vivors in order to obtain power to them to act as trustees, or alternatively to appoint a factor to manage the trust. The latter course was adopted ; Wylie, 28th June 1850, 12 D. 1110 (.see Lord Ivory's opinion in Ferguson v. Majoril)ank9, 1st April 1853, 15 D. G37). Where, on the otlier hand, there is in either a settlement or marriage contract a joint nomination of individuals as trustees, it will be held to imply a several one to the effect of allowing the survivors or the acceptors to act in preference to ajtpointing a factor ; Findlay, 29th June 1855, 17 D. 1014 ; Seton, 28th Nov. 1855, 18 D. 117 (reversing Busby, 1st Feb. 1823, 2 S. 157, and previous cases there cited ; also Ireland 18th May 1833, 11 S. 02G), but where a sine quo nonwcis incapable of acting the Court once authorized the remaining trustees to act without him; Baird, 3d July 1711, M. 7431. In a later case, and more consistently with present practice, they refused to authorize tutors nominate to act without a sine quo noil, and appointed a factor ; Donaldson, 21st Dec. 1770, M. 16364. Probably the same decision would be arrived at in regard to trustees under trusts for different purposes, such as for behoof of creditors, especially after the decision of the FACTORS ARE APPOINTED. 33 House of Lords in the case of Hamilton v. Littlejohn, already mentioned. After an interdict against an assumed trustee's acting had been refused, the beneficiaries, on the ground of their dissatisfaction, applied for a factor on the trust estate, but their petition was refused with expenses ; Roughead, 5th March 1833, 11 S. 516 (see case of Fraser, 11th March 1854, 16 D. 868, supra). A difference of opinion between trustees and beneficiaries, as to the powers and mode of management of the trustees, will not entitle either of the parties to get the estate put under judicial management where the other opposes, although where trustees and bene- ficiaries thus placed concur in asking a factor, the Court will grant it ; Taylor v. Taylor's Trustees, 18th July 1857, 19 D. 1097, and 14th Nov. 1857, 20 D. 52. But where the estate was the fund in medio in an M.P., and the right of an assumed trustee to be sisted to carry it on was disputed, the Court, at the instance of the claimants, sequestrated the trust- estate, in respect the party never had had possession, and appointed a factor with power to appear in the process ; Christy v. Paul, 10th July 1834, 12 S. 916. Where several cautioners for a composition got a disposition from the bank- rupt of his heritable and moveable property in favour of them, their heirs and assignees, with power to them or any one or two of them to dispose of the lands, &c., and were thereupon infeft, the Court held that though all the dis- ponees were dead but one, yet there were no termini Jiabiles for appointing a factor ; Weir, 8th May, 1839, 1 D. 699. But where it appeared that there was a reasonable doubt as to the trust devolving on the heirs of the deceasing trustees, a factor was appointed to continue the management ; British Linen Co., 20th July 1844, 16 Jurist 603. This was the course followed in the early case of Moir, 6th July 1826, 4 S. 808, although the learned Judges expressed a strong opinion as to the necessity of their interference against the parties who presented the application. In the above-men- 34 CIRCUMSTANCES IN Ullh 11 tioned unreported case of llalkett's Trustees, 23 J May 1851, there was a deed granted in favour of the cautioners for a composition to the grantor's creditors, and of their heirs and assignees. The application was at the instance of the testamentary trustees of one of the disponees, and stated that they had heen acting in the management of tlic farm wliicli was convoyed by the deed, and tliat the surviving trustee refused, or at least delayed, to do anything in regard to the management. It was granted. An individual who had accepted a trust along witli otlicrs, hut tluy alone acted in its management, on their death, presented an application for a factor to extricate the trust affairs and to obtain his own exoneration and that of the representatives of his deceased co-tmstees. The Court, as the petitioner was himself bound to carry on the trust and was in a position to act under it, refused the petition ; Uill, 11 July 185o, 17 D. 1104. In the case of Fraser, 11th March 1S34, 16 D. 867, just mentioned, the combination of suspioious circumstances and absence from Scotland, led to the trustees being superseded by a factor; and* it is well recognised that the bankruptcy of the trustee, when he has refused or neglected tt)take steps to protect the triist-estato, will warrant the appointment of a factor on it; Towart, 14th May 1S23, 2 S. 2i\S ; Smitii, 15th May 1832, 10 S. 531; Walker, 30th May 1837, 9 Jurist, 480; Soutar's Crs. 25th Nov. isr,2, 15 D. 89. The efforts of the bankrujit to ](rotect the trust-estate must be such as to satisfy the beneficiaries and the Court, and oven where caution for faithful performance of his office was offered, but not accepted as sufficient, a factor was appointed to suporsedo the tnistoe ; i^I'Phcrson, 19th Doc. 1840, 3 D. 315, 16 F. C. 2<»4. Where two of three trustees wore bank- rupt, the Court ordained thoni all to find caution to the satis- faction of the beneficiaries, and on thointniL'nts of the nature of the case just mentioned are very njuch akin to those of factors loco ahscntis, the cases regarding whose appointment we now proceed to notice, and in fact the Court Sfimetimt's :i))]M»int a party both judicial factor on the estate and factor hroahsnitis to the successftr, if he be known and abroad ; Barstow, 5 Dec. 1857, 20 D. 230. P'ACTORS ARE APPOINTED. 39 Loco ahsentis. — In all cases of the appointment of a factor loco ahsentis^ the absentee must in fact, or from the pre- sumptions of law, be deemed to be in existence as well as furth of Scotland ; Kennedy v. Maclean, 18th Feb. 1851, 13 D, 705. The Court do not hold the mere fact of absence to be sufficient to warrant an application to them for a fac- tor ; there must be coupled with it ignorance of the exist- ance of the interests which require protection ; Stair, iv. 50, 28 ; and this ignorance is presumed from sucli circum- stances as long taciturnity and the impossibility of com- munication being had from residence and address being unknowai ; Paton, 24th July 1785, M. 4071. A man may, in the perversity of his mind, wish to make no arrange- ments for the management of some property or other estate while absent ; and if no one can qualify prejudice in a w^ay which a factor's appointment alone can obviate, the Court will not interfere with the exercise of his rights by a pro- prietor. On these grounds the Court refused to appoint a factor on the estate of a party who had left Scotland and gone to Barcelona, wdthout making provision for its manage- ment ; Stuart, 13th July 1708, M. 7455. But where the person absent has not sufficiently empowered a party to act for him ; Act of Sederunt, 1730 ; Bryce v. Graham, 25th Jan. 1828, 6 S. 425 ; or where minority (or insanity, it is thought, on the same principle) exists to remove the pre- sumption as to intentional want of management, the Court will appoint a factor ; Maclean, 29th Jan. 1834, 12 S. 355 ; Hay, 11th March 1837, 15 S. 850 ; Turnbull, 22d Dec. 1838, 14 F. 388 ; Allen, 31st May 1855 (not reported, but noticed in Allen, 24th Nov. 1855, 18 D. 97) ; also Ross v. Lamb, 11th March 1857, 19 D. 699 ; and where the protection of the interests of third parties demands it, they will not re- fuse to interfere. Thus where a party absconded to America, leaving creditors, a factor was appointed to preserve and realize the stock in trade and other eflects ; Paterson and 40 CIRCUMSTANCES IN WHICH Co., Ttli March ISol, 13 D. 951. The usual case, however, in which such an aiiiKiintmcnt is asked, is where the party coining into a succession has heen long away from Scotland and cannot he made acquainted therewith ; White, 7th March 1820, 7 S. 055 ; Keiling, 15th June 1839, 1 D. 1024. In White's case a factor loco abscntis was appointed, in pre- ference to one loco futon's to the parties Avho w^ould he next heirs of the aljsentee, and as such were interested in his property, on the hypothesis of his heing dead, as he had not heen lieard of for more than twenty years. It was specially approved of, and followed in the case of Somerville, 17th June 1857 (not reported). In the other case of Keiling, the necessity for the appointment arose from the party who was heir under a disposition of heritage heing if alive furth of Scotland, in some place unknown, and if he was dead, from there heing a dispute as to the party who should succeed to him. Again, a factor was appointed on an entailed estate, as the heir whn luul succeeded was ahroad, and had not been heard of for some time ; Tatrick, 18 July 1848, 20 Jurist 5G6. On Partnersliips, d'c. — AVherc a company contract had come to an end hy the dcatli of the last .-surviving partner who had left trustoos, the Court ajipointed a factor to wind up the concern, holding that the trustees who opposed the petition were excluded from doing so except of consent, because the contract clearly iniplird a dclcclus i^crsonon among the partners to it, and it was in consequence of this delectus that the last surviving partner had had be- stowed on him the power to wind up the concern by the contract; Dixon, 22d December ls:'.l, 10 S. 178. Tiu; i)art- ner of a firm shortly dissolved, who liail been emi)owered to wind up the concern and had found caution for his doing so, while in prison on a charge of forgery, executed a trust assignation and factory to enable the partnersliip to be wound up and thus operate the relief ^A' his cautioners. FACTORS ARE APPOINTED. 41 On the application of the other partner of the firm, a factor was appointed on the estate of the late firm ; but he was the same party as was trust-assignee of the other partner ; Marshall v. Anderson, 5th June 1841, 3 D. 989, 16 F. C. 1038. Three partners having undertaken a very extensive joint- adventure as railway contractors, without entering into any contract of copartnery or making any arrangement for wind- ing up the concern on the death of any of the adventurers, the executor of a predeceaser applied to the Court for a factor on the adventure which, except as regarded pay- ment for the work done, had been terminated, in order to a settlement of the accounts of the concern and an adjust- ment among the co-adventurers. The petition was opposed on the ground that the petitioner had other remedies at law which were amply sufiicient to protect him, and that the respondents were asserting no more than their admitted rights to be allowed to remain in the management and control of their own affairs qua surviving partners. The Court however granted the appointment of a factor ; Young V. Collins, 24th Feb. 1852, 14 D. 540. The House of Lords on appeal reversed this judgment, 14th March 1853, 1. Mac- queen, 385 ; and expressly approved of the grounds on which Lord Cockburn dissented from his brethren. He stated that, if all the parties had been agreed in desiring a factor, he should not have objected, but that, as the surviving partners opposed in this case, he had to consider what were their legal rights. "Now when a partner dies, a right to wind up the partnership concern is by law vested in the surviving partners. This is a right unquestionably which, like many other things, is liable to be abused, and the Court may be called to interfere with the surviving and legal winder-up. But then a case of abuse must be at least stated against him why the winding up should be taken out of his hands. There is nothing in this case beyond the ordinary circumstance of the dissolution of a copartnery by 42 CIUCUMST.VNCES IN WlllClI death, leaving surviving partners wlio are by law entitled to wind it up ; and 1 am of opinion that in the present state of the facts there are no grounds that tall fur the in- terference of the Court." The law of England is similar to the law of Scotland as thus enunciated. In Ilardie v. Glover, 18 Ves. '2S1, Lord Eldon laid it down thus: — "I have frequently disavowed that a receiver is to he appointed merely on the ground of a dissolution of partnersliij) ; there must he some breach of duty." Of consent of the parties interested a factor was appointed, on the application of one of the partners of a firm whose con- tract had expired, as there was no provision for, and they could not extra-judicially arrange as to winding up its mat- ters ; Abercrombie, 10th ^larch 1857 (not reported). Pend- ing some disputes between the partners of a newspaper printing and publishing concern, a factor was appointed to manage for their behoof and that of all concerned ; Bell, nth March 1857, 19 D. 704. Fi'O indiviso rights in heritable property may sometimes require, in order to their protection, the appointment of a factor to manage them for behoof of all concerned. Accord- ingly, where two or three sisters pro indiviso ]>roi)rietor8, petitioned for a factor ut see Buthvon, 2lst Dec. 1611 M. 16240; and Baird, 3d Mav 1711, M. 7431 ; Erskine, i. 7. 30; and see Lockhart, 24th dune 1S2!), 3 W and S. 481. The powers of tutors-dative expire by the death of one of them ; Scot, 7th April 1834, 7 W. S. 211. When the Court do interfere, they will never appoint more than one factor to a pupil ; Urown, 1st Feb. 1815, F. C. ; Small, 2l8t Dec. FACTORS ARE APPOINTED. 45 1822, 2 S. 100 ; and the pupil must be within the jurisdic- tion of the Scotch Courts, otherwise the proper officer to pro- tect his interests is a factor loco ahsentis ; Maclean, 29th Jan. 1834, 12 S. 355 ; Hay, 11th March 1837, 15 S. 850 ; but see cases of Wight and Viscountess Alford noticed afterwards. The later case of Allen, also aftermentioned, supports the decision in the case of Maclean. The cases of Ross and Lamb, both decided by the 1st Division on 11th March 1857, are irreconcileable, as each proceeds on a diametrically opposite view of the law (19 D. G99). The contradictor}^ nature of the decisions on this point has been long noticeable ; so much so, that in the case of Turnbull, 22d Dec. 1838, 14 F. 388, the petitioners sought and obtained the aj^pointment of a party as factor loco tutoris et loco ahsentis to a jjupil, and in the case of Lamb's factory the Court subsequently invested the factor loco ahsentis with the character of factor loco tutoris ; 20th July 1858, 20 D. 1322. In the view of the great expediency of such appointments the Court will nominate a factor loco tutoris, although the tutor-at-law oppose on the ground that he is about to serve; Hart, 27th June 1829, 7 S. 805. Prejudice to the pupil may happen for want of the appointment ; and if a respondent has any real inten- tion to serve as tutor, he can by doing so terminate the factory. The objection, that there was no reason stated why the party entitled to serve as tutor at law should not undertake that office, and that hence the Court could not interfere, was withdrawn as the Court discountenanced it, and a factor loco tutoris was appointed as prayed for in Bar- wick, 27th Jan. 1855, 17 D. 308. Still the Court have re- gard to the parties seeking and consenting to the appoint- ment, and when all the next of kin concur they should be made parties to the application ; Cowan, 19th Jan. 1788, M. 7452 ; Logan, 2d Feb. 1828, 6 S. 477 ; Napier, 27th June 1851, 14 D. 10. In the last case, the party entitled to serve as tutor was a petitioner, and so also in the case of 40 CIRCUMSTANCES IN Wlllt n Russel, 27th Juno 1855, 17 D. 1005. Where no intimation liad boon made to the next of kin on the fatlicr's side of an application for a factor, tlio appointment was recalled on their application, reserving to the parties to apply for a new factor ; Fowlds, 10th Dec. 1836, 15 S. 244. One of the earliest factors loco tutoris seems to have been appointed in 175(5 over the estates of Henry, then Duke of Buccleuch, who was an infant, "as no person appeared to undertake the management," M. 7455. The imbecility of the pupil's nearest male agnate above twenty-five years of age, who was thus prevented from claiming the office of tutor-at- law, was the ground of the application for a factor in Cowan, 19th Jan. 1788, ]\r. 7452, and Macintyre, 21st Dec. 1850, 13 D. 951. The appointment of a factor was held to be called for by the absence of the nearest qualified agnate, who was abroad, in Anstruthers v. Anstruthers, 3d March 1818, F. C. Opposition of interest on the part of the person entitled to be tutor-at law will warrant the appointment of a factor; Grant v. Murray, 2d Dec. 1847, 10 D. 194, 20 Jurist 51. There the pupil's father huving left both heritable and moveable property, her uncle obtained himself confirmed as executor -dative to his deceased brother, and then reared up claims against the estate in his own favour ; and it was on the mother's application that the Court interfered to protect the pupil. The report of this case bears that they felt difficulty, from the circumstance of a party being in posses- sion of the moveable property under an unchallenged title to manage it, ]>ut that from this difficulty they were ulti- mately relieved by the executor's minuting a consent to the factor being ajjpointed. Now, putting aside the fact that there was ixritage in herccli'late Jaccntc, the existence of property, to whirh the pupil maybe found to have or dc facto has right, or in wiiich the jtupil is interested, in the hands of a third party, or of tmc, or a body of trustees does not seem to militate in any way against the necessity for a factor to take FACTORS ARE APPOINTED. 47 up and protect tlie pupil's interests therein, or in any other way arising, hut, on the contrary, may in very many instan- ces he the very reason which should weigh with the Court in making an appointment. Sequestration of the estate in the person of the executor was the course to be resorted to (an amendment of the prayer would have covered it), and most of the cases already quoted in regard to the circum- stances which the Court have held to warrant their protect- ing any interest, however contingent or dubious, by a factory, afford almost direct authority on this point ; see also Mr. Fraser's opinion. Domestic Eelations ii. 271 ; but the autho- rities he quotes (w) are not in point. Lord Eldon, in an English case, Wellesley v. Duke of Beaufort, 2 Russ, 20, remarked, in reference to the practice before him, that " the Court is not in the habit of exercising jurisdiction except in cases where the existence of property has brought the infant within the power of the Court ; but it is not from any want of jurisdiction that it does not act, but from a want of means to exercise its jurisdiction." The remark seems directly applicable to the Scotch Courts in the circumstances stated above. See cases of M'Gruther, 27th Feb. 1835, 13 S. 569 ; Miller, 2Gth Nov. 1836, 15 S. 147 ; where a factor loco tutoris was appointed to a pupil without means. A pupil who was resident in England was possessed of an estate in Scotland, and the guardians, whom by an Eng- lish will his father had appointed him, being doubtful of their authority to act in Scotland as tutors, applied to have a party appointed factor loco tutoris to their pupil ward, and the Court granted the prayer of the petition ; AVight, 27th June 1837, 15 S. 1197. The principle of this case was affirmed in the case of Viscountess Alford, 19th February 1851, 13 D. 950. The previous cases of Maclean and Hay already mentioned seem to recognise a sounder princij)le, and suggest the probability of these two last decisions being reconsidered ; the more so tliat in the case of Allen, 48 CIRCUMSTANCES 1\ Wlliril 31st May 1855 (not reported, but noticed in Allen, 24th Nov. 1855, 18 D. 97) ; a factor loco fufon's was not appointed in England, but a curator bonis by mistake, it is thought, for a factor loco absent is. But sec cases of Ross and Lamb, 11th March 1857, 19 D. 699, already noticed in connection \vith the case of Turnbull, 22d Dec. 1838, 14 F. 388. Although a father has ex lege all rights of administration for behoof of his pu[>il-children vested in him, yet a factor loco tutoriswa.s appointed to a child, although the father was alive, whore ho was an undischarged bankrn])t, and had no settled domicile ; Johnstone v Wilson, 11th July 1822, 1 S. 510. The embarrassment of a father's circumstances, and the mere fact of conflicting interests have warranted the Court in appointing curators bojiis as after-mentioned, and are a fortiori of authority as to factors loco tutoris. In fact, in the case of the Earl of Buchan, it w^ould appear that a factor loco tutoris would have been the proper officer instead of a curator bonis. But a curator bonis was applied for to a pupil whose father was alive and unembarrassed in cir- cumstances and for a limited and speci.il imrposo, on the suggestion of the Lord Justice Clerk (Uope) instead of autho- rity to the father to soil the pupil's interest in a property; Sawers, 9th ^larch 1850, 12 1). 900. The propriety of the course originally adopted in Sawers' case is however con- firmed by the decision in the case of White (1st Div.), 7th Mareh 1850, 17 D. 599, in which case Lord Deas, in the course of his clal»orate oi)inion, takes occasicm to su})ply what is awanting in tlio report of Sawers' case, and explains the grounds of it to have been, that the Court must have, if the powers srnight were to be granted, a party who couM find caution, and that, although there the father offered caution for his intromissions with the price of the ])upirs property, the Court could not take caution from a party who was in no sense an offirer of theirs. In the cases above noticed of applications by factors on trust estates where a trustee was FACTOUS ARE APrOINTED. 49 vergens ad inojnam, or otherwise suspect, the Court did take caution from parties who were not their officers. A fatlier was, however, superseded as the administrator to his family, although unembarrassed and quite capable of acting, by the First Division, in Martin or M'Whirtcr, 11th March 1852, 14 D. 761. The authority of a factor loco tidoris extends to all the pupil's estate within the jurisdiction of the Scotch Courts ; and hence the Court of Session refuse to appoint such factors with the view of their managing only one piece of business for the pupil, such as making a claim in a sequestration, or superintending a litigation, a tutor ad Z«Yem being the proper officer to be appointed in these circumstances ; Saunders, 10th July 1821, 1 S. 113 ; Walton, 17th Jan. 1850, 12 D. 912. The principles, which are involved where a tutor has been nominated in regard to a special subject, will be made the subject of remark in connection with the appointment of a curator ho7iis to a minor capax. As may be supposed, the facilities afforded for obtaining factors have very nearly superseded the old and expensive form of service of tutors-at- law, and also tutors dative ; and although the Courts do not maintain such a surveillance over these tutors, yet their powers and responsibilities are far better known, because defined by the common law, than are those of the judicial officers now so frequently appointed. But there was another element, which contributed to the increase of such api)lica- tions, in the strict rule of law which prohibits tutors from receiving any remuneration. " I like factors loco tutoris, for they serve for hire, and consequently better than those who serve for conscience' sake," was once remarked by Lord Auchinleck (Hailes 360) ; and this fully accounts for the readiness with wdiich the Court applied the remedy wdiich they possessed whenever craved to do so (Fraser's Domestic Kelations, ii. 269). The objection hence arising to the common law appointment might be obviated by statute. D OO CIRCUMSTANCES IN' WHICH Curator Bonis to a Minor Capax. — A pujiil is in a very flifft-Tont position from a minor in ropinl to the claims, wliich ho has for assistance in the protection of liis interests, on the Courts of Equity. The latter, among other rights, are, if within Scotland, hcM capable of choosing curators to assist in the management of their concerns, and no restriction on their right to do so has ever been imposed, with the excep- tion of the privilege of naming curators as well as tutors to their legitimate children conferred on fathers by the act 1696, c. 8; ]\['Neill, 8th March 1840, 11 S. and D. 1029. So much is this the case that, where a debtor suspended a charge by minors and their curators because the «me quo non was dead, an offer to compear and acknowledge the sur- vivors as curators was held relevant as an answer ; Fairfouls, 4th Jan, 1GG6, M. 10277; see as to joint nomination under head of Factor loco tidoris. The proceedings to be adopted by a minor, at the time without statutory curators (Ersk. i. 11 and 18), when he intends to put himself under curatory, are regulated by the act 1555, c. 35, which necessitates his calling as parties to the judicial proceedings he is authorized to institute two of the next of kin on each of the father's and mother's side ; Wallace, 23d July 1674, M. 16200. In the greater number of cases where the ('ourt have appointed curators horns to minors, they were unable to choose curators from their not having next of kin to cite, because the minors were themselves illcgitiniato children ; Young, 10th Feb. 1818, F. C. ; Wood, 31st May 1834, 12 S. 663; Reid 10th July 1830, 14 F. C. 1058 ; Ogilvy, 2d March 1849, 11 S. and D. 1020; M'Xeill, Sth M.-ird. ISIO, 11 S. :ind D. 1020; or that they had no relations at all ; K<.brrfs, 1 Ith duly 1839, 14 F. C. 1050 ; or none in Scotland ; Towton, 8(h Dec. 1847, 10 S. and D. 225; Wood, r.Kh July 1S|!), 11 S. and D. 1494; Webster, 27tli Nov. 1840, 12 1). Oil ; Mayne, 11th March 18-)3, 15 D. 554 ; or that there wore no next of kin on the father's side within Scotland; M'Lellan, 25th Nov. FACTORS ARE APPOINTED. 51 1847, 10 S. and D. 148 ; or that the mother's next of kin were furth of the kingdom ; Johnston, 15th June 1839, 14 F. C. 1058 ; Eoss, 17th July 1846, 8 D. 1219 ; and so the statutory citations could not take place (Stair i. 6, 30 ; Erskine, i. 7, 11) ; and even where an inability on the part of the minor to choose curators can be established, on the ground of want of freedom of election, the Court will appoint a curator bonis ; Bower, 29th July 1750, M, 8910 ; see as to the care taken to secure freedom of choice by minor ; Bargany, 14th July 1702, M. 16319 ; Gordon, 11th July 1710, M. 8910. The minority of tutors or curators nomi- nate is a temporary suspension of their appointment, and until they be qualified the Court may provide a guardian ; Dishington, 9th May 1858, M. 8913. The authority of the decisions as to there being a necessity for the Court's inter- ference, where the relations on the one side of one of the parents are furth of Scotland, or are wanting altogether as with bastards, has been impaired by the refusal of the First Division to appoint a curator, where the minor had no relations on the mother's side in Scotland, in the case of Barron, 16th Nov. 1854, 17 D. 61 ; but there the Lord President gave as the ground of the decision, that he was not aware of " authority for going that length." Lord Ivory concurred, and quoted as the ground of his opinion a passage from Erskine, which relates to the appointment of factors loco tutoris, and not of curators bonis. The grounds of refusal assigned in Barron's case suggest the inquiry, why the difficulty, which has arisen as to the citation of the next of kin of the minor who are absent or awanting under the Act 1555, c. 35, cannot be obviated in the manner in which a similar difficulty arising under the Act 1672, c. 2, as to tutorial and curatorial inventories, has been overcome. Under the latter of these acts, the Court, by an uniform practice of very old standing, have declared the competency of proceeding on a petition to dispense with d2 r)2 CIRCUMSTANCES IN Willi II the ritatiitii (if the iiltsi-iit nr aw.nitiii^ luxt ol'kiii ; and \\]\y sliould not the same course he adopted in proceedings for clioosing curators under the former? Some inconvenience may arise fmm the ])ruvision in tlio act 20 and 21 Vict., c. 56, that summary applications incident to causes depending in Court must he taken to the Inner House, and cannot proceed hefure the Lord Ordinary. Applications to dispense with tin.' citation of next of kin, asheing relative to the action for giving up inventories, are under this provision of the act ; Countess of IMorton and others, 11th Jan. 1809, not reported, It may be that in some way any objection on this score may he obviated ; and if so, it occurs to us to suggest that, if applications for curators bonis were made to combine a prayer to dispense with the citation of absent next of kin, a sist until an action for choosing curators be brought could be got, and thereafter a dispensation as to the citation of the kindred, absent or a wanting, could he olttaiiicd under the application and it would not prove wholly worthless or abortive, and thereafter the action could he competently pro- ceeded in. This course would, moreover, do away with the conflict of principle which arises from the present practice, and would relieve the Court from an interference which many of our judges have felt not to be warranted by an}' deficiency in our legal procedure, if it were left to its own resources. The aiiomalons character of a ( uraloi IxDd'.s to a min«»r capox, who, without infringing the legal rights of the ward, cannot exercise his olfice in the way and to the ex- tent which obtains in regard to other judicial factors, will be aftenvards alluded to, and affords another strong ground for an alteration in the practice which has resulted in a great number t)f unnecessary judicial appointments. The com- petency of such a course would seem to be undoubted, as in the case of Carmi.lin. 1, 1 1th June isis. M J). I2rayer of a jMtilioii for a factor /oco /w/o/v'.v, tolheelhit FACTOKS AllE Al'POlNTKD. 53 of obtaining a dispensation as regarded the citation of the next of kin, because furth of Scotland. Where the father of illegitimate minors was himself ille- gitimate, and where he had died intestate without having left a nomination of tutors or curators under the act, as it was found bastards were entitled to do in IMuir, 8th March 1628, M, 16250. — his property falling, of course, to the Crown, to whom, in this instance, application fur a gift of it had been preferred, — the Court were applied to for a curator bonis; but they suggested a withdrawal of the application, as an ap- pointment in the circumstances seemed only competent in the Court of Exchequer ; Scott, 28th Jan. 1823, 2 S. 145. It is through the interposition of this tribunal that the Crown exercises the prerogative of granting tutors or curators, where there are none nominated under the act 1696, A. V. B., 10th July 1534, M. 16219, or served to the office ; Ersk. i. 7, 9. The jurisdiction of the Court of Ex- chequer having been transferred to the Court of Session by the act 19 and 20 Vict., c. 96, a conflict of jurisdiction need not now be feared ; Wilson, 22d Jan. 1857, 19 D. 286. It is necessary to point out the distinction between a party or parties properly nominated tutors and curators by the father, who are constituted for the management, or to assist in the management, of the whole estate, and a class of tutors and curators who, in respect that they have to a limited extent the same powers, have obtained the same name. This latter class derive their authority solely from their institution being a condition under which a special subject has been accepted ; Scott v. Kennedy, 10th Dec. 1675, M. 16291 ; Erskine, i. 7, 2, and 13 ; and their powers of administration will, unless otherwise provided, last until their failure by death or otherwise, when these will merge and be carried to the curator of the minor, if he has, or whenever he get-s one; Craufuvd, 11th March 1828, 6 S. 749; Kirk, 21st May 1836, 14 S. 814; see also Fidlar, 15th Jan. 1745, I\r. 54 CIRCUMSTANCES IN WIIRII 16350. The otliccr uf Court who is appointed to protect the interests of a minor holds un ofTice equally extensive with tliat of a curator nominated under the act IGUG, or chosen by the minor, and the Court accordingly refuse to appoint a curator bom's for any limited purpose ; Macarthur, IGth June 1854, 17 D. Gl. The cases in which the Court decided this as regards factors loco tutoris seem in point too, althougli their powers are more extensive. The great convenience and acknowledged competency of combining in one petition ap})lications for factors loco tutoris to the pupils, and for curators bonis to the minors of the same family, (Johnstone v, Wilson, 11th July 1822, 1 S. 510 ; Johnston, 15th June 1839, 14 F. C. 1058 ; Ross, 17th July 184G, 8 D. 1219; M'Lollan, 25th Nov. 1847, 10 D. 148), led the Court in a great number of cases to appoint (curators bonis where no necessity for their interference existed. The appointment of a curator bonis to a minor ca2mx is remedium cxtraorclinnrium ; and the Court very pro- perly, and at a very early period, refused a judicial curator where there existed no obstacle to the minor choosing curar- tors ; Bannatync, TJth 'May 1827, 5 S. G38 ; Maclean, 29th Jan. 1834, 12 S. 355. The following were cases in which, from a combination of tiie ajiplications, and from the fact of a necessity for a factor loco fuloris having arisen, the Court appointed a curator bonis without the existence of a legal necessity for the curator's appointment ; Ilay, 22d Feb. 1749, M. 8973 ; Watson, Gth Feb. 1827, 2 F. C. 189 ; Dow, 25th Nov. 1847 ; Arnut, 15th Dec. 1849, 12 D. 912 ; Irvine, 13th Feb. 1850, 12 D. 912 ; Paterson, 2d March 1.^50, 12 D. 912 ; Sutherland, 18th Feb. 1851, 13 D. 951; M'Kinnon, 12th July 1851, 14 D. 12. The Court, however, have re.solved not to allow the appointment of curators bonis to be ob- tained where parties have their legal remedy, and have applied the principle of the cases of Bannatyne and ^laclean in Mathew, 5th Dec. 1851, 14 D. 312, and Burns, 13th Dec. FACTORS AliE Al'PUINTED. 55 1851, 14 D. 311. The First Division did, however, appoint a curator bonis to a minor, where no special cause therefor was shown, in Buchanan, 3d March 1854, 16 D. 717. The only peculiarity of that case consisted in the fact that the application was originally for a factor loco tutoris, but before the factor appointed under it could obtain possession of the estate the pupils had become minors, and the Accountant of Court, in a report on some difficulties with reference to get- ting possession of the estate as to which he had been consulted under the Pupils' Protection Act, stated his opinion that in the circumstances " the Court would act most beneficially for the minors by appointing — curator bonis." The cases of Macarthur, IGth June 1854, and Barron, IGtli Nov. 1854, both reported 17 D. 61, show the intention of the First Division of the Court to adhere to the restriction which, on sound principles, had been previously established, and to ap- point curators bonis only to such minors as cannot choose curators for themselves. This latter case may, as has already been hinted, be worthy of reconsideration on other grounds, or may result in an alteration in the practice of the Court tending to make it more reconcileable with principle, as above explained. The Second Division adopted an oppo- site course in Carter, 21st Jan. 1857, 19 D. 286. Although a father has at common law all rights of ad- ministration, for behoof and with consent of his minor child- ren, vested in him, yet a curator bonis was appointed to a child although the father was alive, where he was an undischarged bankrupt, and had no settled domicile ; John- stone V. Wilson, 11th July 1822, 1 S. 510. The embarrass- ment of a father's circumstances was held to warrant the Court in giving a curator bonis to his children ; Earl of Buchan, 21st Dec. 1839, 2 D. 275 ; Glassford, 24th Feb. 1849, 11 D. 1030. The Court have also interfered where a minor and his father had conflicting interests in a property ; Mann, 19th July 1851, 14 D. 12. The Act of 1555, c. 35, 66 CIRCUMSTANCES IN UllU'll only applies in cases of the failure of curators after the fatlier's death, and to minors within Scotland. Tu protect property for behoof of a minor out of the kingdom, the proper officer is a fac^tor loco nhscntia; ^I'Lean, Hay, and Allen, sujyra, also cases of Ross and Lamb, 11th March 1857, 11) D. (jyj, already noticed in connection witli the case of Turn- bull, '22d Dec. 1838, 14 F. 388. The ground on which the Court have proceeded in ap- pointing a single factor loco tutoi'is was, as enunciated in one of the early cases above quoted on the point, that, " as there can he only one tutor at law, so there can be only one factor." The same restriction was never imposed as regards curators ; and hence the Court have not considered themselves bound to nominate only one curator bonis, and in certain cases they have appointed several ; at the same time, considera- tions of expediency, in regard to the efficient and responsible performance of the duties of the office have led them, in the general case, to constitute one party curator. As the rule for the generality of cases, this was adopted in Brown, 1st Feb. 1815, F. C. ; see also Watson, 21st Feb. 1831), 1 D. 543, and Sloan, 18th Dec. 1844, 7 D. 227. Four curators were appointed in the ca.se of Young, I'Jth Feb. 1818, F. C. ; three curators in Ogilvy, 2d March 1849, 11 D. 1029; and two curators in M'Neill, 8th March 184'J, 11 D. 102!), where the nomination was expressly declared to he joint, as one of the parties was the heir next entitled to succeed the minor in an entailed property. Whether the appointment is good in the person of tlie survivors (^'i a iiiiiiil»er t»f curators bonis lias not been th'cided ; but from thi; fact of tlie survivors and survivor of the curat(jrs aj)pointed in the case of Ogilvy }»eing specially empowered to act, and the consideration that the interests of cautioners are involved, the Court would, it is thought, lean to the opini<»n, that sut iiKltuleil in the act. The Lunacy Act (20 and 21 Vict., cap. 71, § 81), in giving the Lord Advocate power to apply for a cm-ator bonis to a lunatic, restricts his doing so to the case of a person wlio lias already been " detained or taken charge of as a lunatic," and the act (§ 2) defines a lunatic as " any mad or fatu- ous or furious person, or person so diseased or afiected in mind as to rentier him unlit, in the opinion of competent medical persons, to be at large either as regards his own personal safety and conduct, (;r the safety of the persons or jiroperty of others, or of the public." The Court saw meet to interfere in the case of a party in such a state of mental imbecility as disablrd liim from attending to his affairs, and appointed a curator bonis ; Graham, 1810, noticed in Brycc, 2r)th Jan. 1828, G S. 425; air. 2:M July 1828, 3 W. S. 323, where the fullest exposi- tion of our law on this subject is to !•«• fiiuinl. To an old man, whose mental imberility was owing to paralysis, a curator bonis was appointed in Howie, Tjth Dec. 182G, 5 S. 72. In the case of Dalrymple, 0th March bsr,7, 15 S. 7GU, the party entitled to thr lutory was furth of Scotl;iiiil. I'ul wliere it is a woman, (dothed with a hiisbanfl (piite (Opax, wlio becomes incapable, her husband is her curator in pre- FACTORS ARE APPOINTED. 61 ference to the nearest agnate or any judicial appointment ; Ilaliburton, June 1791, M. 16379. Where a fatlicr had left a child who was facile a pro- vision for his support and nominated tutors and curators, on his attaining majority, and as he had meanwhile suc- ceeded as heir-at-law to some other property, one of the curators nominate applied for the appointment of a curator bonis. This was resisted by the other curators nominate ; hut the Court ultimately appointed a curator bonis, as they had doubts whether a father could nominate guardians to act after the ward had attained majority, except in regard to the provision made by himself; Craufurd, 11th March 1828, 6 S. 749 ; where trustees appointed by a father to a fatuous son applied in similar circumstances for the appoint- ment of themselves and the survivors and survivor of them as curators bonis, they granted it ; Kirk, 21st May 1836, 14 S. 814. A curator bonis was appointed to a lunatic, for whose behoof his father had constituted a trust, but the surviving trustee had become bankrupt and been sequestrated, although the trustee opposed the step as unnecessary, and the special power of calling the trustee to account, and superintending the trust-management, was granted simul et semel ; Eobert- son, 11th March 1829, 7 S. 573. A party having, in respect of the peculiar footing he was on with his family, and to provide against future incapacity, written a letter to two friends requesting them in that event to manage his affairs, these parties, on the gentleman becoming incapable, pre- sented a petition praying the Court " to appoint them to the office of curators to the person and effects of Dr Sibbald in terms of his letter to that effect, or to grant warrant and authority to the petitioners to take the management of the person and affairs of Dr Sibbald." The Court were puzzled as to the right of an individual thus to exclude parties entitled to be his curators at common law, and therefore superseded tlie fartlicr advising ; but, in the mean- 02 CIRCUMSTANCES IN wniril time, auJ without prejudicing any party, granted warrant to, and autliorized the petitioners to take the management (»f the aflairs of Dr Sihhald. Wlion the ])etition was after- wards moved, the petitioners acceded to a suggestion of the memhers of Dr SibhaUl's family who opposed the apph cation, and tlie Court made an appointment in favour of the peti- tioners and of a tliird party fixed on hy extrajudicial ar- rangement ; llowden v. Sihbald, 9th March 1833,11 S. 561. This and the before-mentioned case of Kirk are the only cases where more tlian one curator has been appointed, and the general inexpediency of doing so is recognized ; Kirk, 21st May 1S3G, 14 S. 814. Questions as to survivorship, Ac, in such a case would be resolved on the principles al- ready discussed in reference to a number of curators bonis to a minor capax. A merchant having been seized with a paralytic distemper, and being thereby incapable of business, a party was ap- pointed to manage his affairs ; Anderson, 18th June 1748, M. 7439. The incapacity may arise from any cause. A stroke of apoplexy led to the incapacity which necessitated the appointment of a curator bom's in the case noticed in Forster, 23d Dec. 1848, 11 D. VXU . The Earl of Stair, who was a Scotrh nobl(>man, l»nt re- sided in Paris, having fallen into a state of hopeless imbe- cility or insanity, accompanied with paralysis, and being wholly unable to administer his affairs, was put under judi- cial curatory by the Court of Session, although the a]ipoint- mcnt of a curator l>o7)is was ojtpo.sed l>y the trustees under a general disposition by his Lordshiji fur behoof of creditors who alleged there was no room for such an a])pointment ; Dalrymple, 2r)th June 183G, 14 S. 101 1. A domiciled Scots- woman bcroming in.sane in P^ngland, and the Court being applied to, appointed a curator bonis to her ; ^Murray, 24th Feb. 1849, 11 D. 710. On the principles of the decisions of M'Lean, Hay, Allen, Lamb, and Ross, noticed in our remarks FACTORS ARE APPOINTED. 63 as to factors loco absentis and loco tutoris and also as to curators ho7iis to minors, it is submitted that the proper officer to take charge of the property of a lunatic or other incapable out of Scotland is a factor loco ahseniis. The distinctive features of these different offices have been un- fortunately very much confounded in practice, as we took occasion to remark in the outset of this chapter ; see Turn- bull, 22d Dec. 1838, 14 F. 388, where to remove all doubt, an officer was appointed under both names. It has been a question mooted by our institutional v^Titers, whether parties who are deaf and dumb are incapable of managing their own estates, and therefore liable to curatory? Stair (iv. 3, 9) and Erskine (i. 7, 48, and iii. 1, 16), give dif- ferent answers thereto ; the former relied for authority on the Eoman Law, and the latter, partaking more of the spirit of modern times, ventured to think that there were " instances of such (deaf and dumb persons) who not only are endowed with strong natural parts, but can apply them to all the affairs of life," who ought not to be deprived of the management of their property ; see Craigie v. Gordon, 17th June 1837, 15 S. 1157. In the case of Mark, 14th June 1845, 7 D. 882, the Second Division of the Court superseded a party in the management of his property, who had, in consequence of paralytic attacks, been completely deprived of his hearing and sight, and was unable to communicate with any one except through the medium of touch, but his mental facul- ties remained unimpaired, and he told Mr Kinniburgh of the institution for the deaf and dumb what he wished done with his property, and that he had instructed his agent in the matter. The First Division, in the later case of Ivirk- patrick, 8th June 1853, 15 D. 735, refused to interfere where the certificate of the medical men bore that the party's hear- ing was natural and distinct — that her speech was deficient, but the deficiency was dependent upon the imperfect state of her organs of articulation — that she displayed acquaintance r>4 CIRCUMSTANCES IN WI1HII witli tlio comparative value of money and property, ami that slie was cai)al>li', in tlieir opinion, of jiuliciously expending tlie one ami taking lare of tlie other, liaving manifested such a degree of slirewdness and intelligence as would enahle lier to take charge of her o^vu property. The remarks of the judges in that case contain a full statement of the principles which regulate the Court's interference in such cases. They will not give effect to every ohjection founded upon the piiy- sical defect of parties, and will not take upon themselves to supersede them in the management of their affairs without hcing satisfied of the necessity for interference. A judicial appointment to take charge of the estate of a party, who be- sides being very aged was deaf and blind, and hence unable to manage his affairs, was made in the case of Wilson, Nov. 1856, noticed in I^Iorrison, 21st Feb. 1857, 19 D. 504. The manner in which the Court have been in use to satisfy them- selves of the necessity of any appointment of a curator bonis will come to be noticed when the procedure incident to such applications falls to be detailed. (See Chajiter V.) Interim Appointments. — The power possessed by the Courts to make factorial appointments ad interim has been already alluded to, and reference is here made to our pre- vious remarks, not only as to these ap]>ointnients at common law,but also under statutes, and in particular tlieAct20and 21 Vict., c 50. A necessity for the exercise of this power arose in several of the cases above mentioned, with reference to the appointment of Managers of IJurghs ; l'hili[t, 24th Dec. 1831, 10 S. 192. A necessity has also been held to arise in the case of a party incapacitated, where the property to be taken charge of consisted of small rents, the recovery of which, at the term of Martinmas, would have been hazarded by delay ; A. r,. 20th Nov. 1829, 8 S. 89. Where a curator bonis already in office liad been sequestrated, an interim ajtpoint- ment was malioatiun ; Frsk. ii. 12, 55 and 5G ; Cathcart t". Cathcart, 11th Feb. 1829,7 S. .111(1 I). :VJ-I; Elliot v. Tringle's Trs., 27th :\Iay 1843, 5 D. 1075, 15 Jurist 427 ; Frskine v. Hil- locks, 1st July 1843, 8 I). 8G3, 18 Jurist, 518 ; Brown v. Robertson, 29th May 1845, 7 D. 745, 17 .lurist 39G ; Kussell, V. M'Tntiinier, Uth Mareh 1847, 9 1). U>>'J, 19 Jurist 699; Y(»ung, 18 bS (not reported, but noticed in liarr v. .Siiarp, 14 l>. :517) ; Macfarlane v. Graham, 14th Nov. 1851, H D. 321, 24 .lurist 8. But that this remedy is often sought in circumstances, wliere no such supremo necessity of interference is instructed an the Court very properly desiderate, is shown by reported cases, which are very instructive as shewing tiic elements on FAcroUS ARE AI'l'OINTEU. 71 which the Court proceed to form an opinion. In M'Gregor v. M'Neill, 22(1 Nov. 1821, 1 S. 153, a party who had obtained a decree in a declarator of marriage against a woman was found not entitled, during the period between the date of the decree and its becoming final, to have sequestration of her heritable and moveable estate, and a factor named thereon. There w^as here no difference effected in his position as re- garded the property from what he occupied previous to de- cree, and then it was undoubted that any application such as he afterwards presented would have been incompetent. Carrying out this principle somewhat farther (in modern practice, execution pending appeal is commonly granted) the Court refused to interfere on behalf of a party who had obtained their Lordships' Interlocutor in his favour against the possessor, as the latter had taken the case to appeal to the House of Lords ; Berry v. Anderson, 17th Dec. 1822, 2 S. 91 ; and Clouston v. Anderson, 15th Jan. 1825, 3 S. 306. The principle involved in these decisions (except with reference to execution pending appeal) received full consideration and illustration in the case of Bogle and Co. V. Cochrane, 10th July 1847, 9 D. 1503. There a party, who had been unsuccessful in a reduction of the title of a creditor in possession having reclaimed, petitioned the Court meanwhile to sequestrate the rents of the property, and to appoint a factor. But this was refused, the Lord President remarking that " it would no doubt be ver^^ convenient to deprive the defender of the sinews of war " in this way. Lord Jeffrey added that '* possession is in all cases the foun- dation of very clear and peculiar rights, and to deny to the party standing on that vantage ground the privilege which it bestows, something very clear and decided would be necessary ; something that would shew that the posscssioiv was no longer held in bonajide," herein stating the element which the Court desiderate in every such application; and in which ]t(iint all the decisions converge. In the decision rl CIKCUMSTANCI.S IN WHIi II in the case oi" ^fonro v. Graham, 28th June 1849, 11 1). 1202, which dinerod in this respect from the last case that the pupil p<»sscssed unly an apparency, and that the petitioner was maintaining in a claim to be served as heir to the imjiil's ancestor that the pupil was a supposititious child, the prin- ciple stated by Lord JelTrcy was affirmed, and the applica- tion for sequestration and a factor was refused, in respect that tlie pupil had from his birth been maintained and treated by his reputed parents as their cliild. Where a party had been appointed factor loco absentis, and in addition to the usual statement of the circumstances which rendered this appointnient necessary, the petition bore that there were circumstances which gave the petition- ing friends reason to believe that it was j)ossible the absent party might be already dead, and thereafter, on inquiry, it having been found that what was formerly belief had ap- proached as nearly to certainty as possible, the jtarty who was the factor obtained service as nearest heir to his absent ward as now dead, lie then applied to have the factory re- called in respect of the ward's death, and for exoneration. The sister of the deceased absentee, and uC tlie party served as his heir meanwhile presented another petition, where- in, after a narrative of the inquiries and service, she stated that she was still by no means satisfied of her brother's death ; but that, if that sluiuiil tuiii nul to be true, the party who was both factor and heir had an interest directly op- posed to hers as the deceased's next of kin. As it was incou- sistent that one party should hoM an ai)i)ointment as an oflicer of Court, to administer the whole estate both heritable and moveable of the owner as absent from the country, and at the same; time possess tlie heritable estate on a title which superseded the foresaid appointment, she asked the Court to recal the existing factory, and of new to appoint another factor. Both thrse petitions with answers raino to be ad- vised together, and the (Vnirt, f>ii the priiiri|ilr thnt rcduc- FACTORS AliE APPOINTED. 73 tiou or some other competent proceeding must be resorted to to take away the brother's riglit as heir, which had been legally and competently established by a service, refused to appoint a new factor, as the possession of the party could not be in- verted, but must be recognised. Had a reduction been in dependence, there might have been room for a factorial appointment. The existing factory was therefore recalled, and the sister's petition refused with expenses ; Mullers v. Wardrop, 1st Division, 10th July 1846, 18 Jurist 540. There is here an apparent inconsistency wdth the Court's (same Division) decision in the case of Reid v. Brown, 14th Jan. 1834, 12 S. 278 ; but in botli, regard was had to the proof on which the service as heir had proceeded, on the principle, be it right or wrong, that service is an ex -parte proceeding. In a similar case, where a party served as heir to a brother supposed to be dead, and it was sought to disturb her pos- session by getting a factor appointed on an offer of caution for past and future rents of the subjects, the petition was refused; Chambers v. Carruthers, 14th July 1849, 11 D. 1359. In one of the first cases under the Pupils Protection Act (12 and 13 Vict., c. 51), a factor loco tutoris,or as he should have been called curator bonis (see supra as to a curator bonis to a minor iticajMx), appointed in 1826 to a lunatic minor, who died in 1847 leaving representatives S2ciidinp subinissinii is in cllVrt ;i litiuatitm, and to pre- serve the estate involved inanyrofcrenco, the.Courtwill inter- fere by the a])p(tintnu'nt of a factor where n]i[)lication to tliat offect-is competently made; Esson, 19th July 1851, 14 D. 10. JfisccUancoiiS Cases. — It i.s not ditlicult to suppose cases to arise where a le.i;al interest may require the appoint- ment of a factor in order to its protection, not within any of tlie classes into which, for the sake of convenient reference, We liavc thrown the decisions. Notwithstanding, there are contained among the decisions so classified many which shew that the Court are prepared to extend the appointment of judicial factors to every case, whether there be exact pre- cedent for it or not, where a legal necessity arises in its circumstances, and to these decisions a general reference is made. But in particular illustration of the circumstances, which will justify an appointment, we would refer to one or two cases rather special in their circumstances. Although a sequestration under the Bankrupt Act of the estates of one party to whom a jiropcrty was alleged to belong had been granted, and if might bo that the i)roperty would thus be embraced in the management of the officer under that act, the Court ajipointed a factor on the property, as it would be benelicial to all interested in the meantime; Scott, 11th Mareli iniT, !) I). 'J-l\. W])ere,altli(.ugli subjects could have been claimed by the trustee in a sequestration, he refused to deal with them, and left them to the heritable creditors, the petition (jf the common agent in a ranking and sale of the subjects for a factor to manage them was granted ; Inglis, 26tlj Feb. 1850, 12 I). 913. On the petition of the trustee on a sequestrated estate and of the heir of the bankrupt, a judicial fa(tf)r was appointed to manage the herital)le estate of the bankrupt jjcnding a submission between the trustee and a purchaser who hesitated to accept the litb' od'en-d him ; Ksson, 19lh duly 1S51, 14 P. K). FACTORS ARE APPOINTED. 75 Where the proprietor of an estate had sold it, but in con- sequence of the purchaser's attempting to resile he had been obliged to resort to an action of implement, the Court ap- pointed a factor on the estate ; Buchanan, 19th Doc. 1833, 12 S. 232. In another case, a party died leaving a settlement under which a daughter took in liferent, and her children nominatimin fee, but liferentrix and fiars all died after being infeft — the latter before any had reached majority or been married, and her husband and the children's father possessed as their heir, but he was superseded by a judicial factor sought for the protection of the interests of the children of another daughter of the testator, who was called after the failure of the other daughter's issue to succeed to the property in which the other daughter and her deceased children were infeft ; Keiling, 15th June 1839, 1 D. 1024. Where a heritable bond had been taken to a woman for her liferent use allen- arly, and to her lawful children equally, whom failing her own nearest heirs in fee, the Court, in respect a debtor had raised doubts as to the competency of the liferentrix grant- ing a discharge, appointed a factor to concur in the discharge and to protect the interest of the fiars, by uplifting the sum in the bond, and reinvesting it under the same destination. The liferentrix in this case had already been twice married, but had no issue ; Gowans, 9th March 1849, 11 D. 1028. A similar appointment was of the same date made in the case of a widow who had a family by her marriage, in order to the protection of the interests of any lawful children who might thereafter be born to her ; Prentice, 9th March 1849, 11 D. 1028 ; see also the cases of Barwick and Fraser, noticed supra in our remarks as to factors in room of trustees. Where under an antenuptial contract certain parties were the disponees of heritable property in trust for the wife's separate use, and to account to and pay over to her the whole free proceeds during the subsistence of the marriage, exclu- sive of i\\Q jus moriti, and during her life, with instructions H) CIUCUMSTANCKS IN WIIK II as to the destination ul" the i)ruj)t'rty alter her death to the liusband, if alive, and their issue in liferent and fee, a judi- cial factor was appointed on tlic jietition of the spouses to protect the interest of the ehildnn nati ct nascitiiri in a transaction relative to the proi)erty, from which a party threatened to resile in consequence of the true fiars not being in a condition to execute the necessary deeds to carry it out; Muller, Nov. 1851, (not reported, hut noticed in Muller v. Dixon, 11th Feb. 1854, IG D. 53G). Where it was alleged that a trust-deed, under which thepetitioner was largely interested along with her children, had been destroyed in order that she might not only have no addition to the provisions of a marriage-contract, but might be deprived along with her children of the interest in a partnership, the deed of contract wherein was also alleged to bo destroyed, the Court appointed a factor on the estate of the deceased husband in order to the protection of those interests which were alleged to have been placed in jeopanly ; Lady Walker Drummond, 11th March 1850 (not reported, but noticed in Wryghte v. Lindsay, *20th Nov. 185G, IIJ D. 57), and also in petition for recal of the factory by Lady Drummond and the other trustees under the destroyed deed after its tenor had been }»roved ; 13th June 1857, 19 D. 850. Where the institute in an entail rejected the estate, the Court after ordering intimation to the party who would, if he lived, be heir, and who was the son of the institute and a pupil, ajip* anted a factor thereon for behoof of all concerned; Gilniours, lltli .Ian. 1857 (not n ported). Where a jiarty abroad was fotind tiitillcd to an unexpired lease of a farm in a litigation witli the lanilloid, the Court €X pmjni'o molit put the farm under judicial management, as that wa.s thought expedient for the interests of both parties; Crichton v. Lady Keith, 11th Man Ii 1S57,19 D. 713. Such judicial acts in a depending process are sanctioned by an oM authority; Hay v. (iranf,22d Feb. 1740, M. 8978. FACTORS ARE APPOINTED. 77 Where the Commissioners under a Local Police Act were superseded by the repeal which the adoption by the rate- payers of the provisions of the General Police Act for Scot- land effected, a judicial factor was appointed on the funds and estate of. the Commissioners under the extinct Local Act, as the General Act did not transfer these funds or make any provision for realizing the estate and discharging the debts of the Commission ; Magistrates of Dundee, 3d July 1852 (not reported, but noticed in Myles, 13th Dec. 1855, 18 D. 205). There are some cases which have occurred in England, and which, as they relate to points not yet decided in Scot- land, it is proper to notice here. Where the profits of the office of Clerk of the Peace had been assigned for behoof of creditors, and a question arose as to the validity of the assign- ment, a receiver was appointed thereon pending its settle- ment ; Palmer v. Yaughan, 3 Swanst. 173. Indeed it is now fully established that the only limit to the appointment of a receiver can arise from the emoluments to be collected being unassignable on grounds of public policy — e.g., ofiicer's half-pay ; Cooper v. Reilly, 2 Sim. 560, 1 R. and M. 560. S. C; M'Carthy v. Goold, 1 Ball and B. 387; Stone v. Lidderdale, 2 Anst. 533 ; Collyer v. Fallon, 1 T. and Pt. 459 ; Spooner v. Payne, 1 De G. Mac. and G. 383 ; Noud v. Back- house, 2 Y. and C. C. C. 529 ; Tunstall v. Boolber, 10 Sim. 542 ; Davis v. Duke of Marlborough, 1 Swanst. 74, 2 Swanst. 125; see, in illustration, Latta, 18th JulylS57, 19 D. 1107. A receiver of the tolls on a turnpike road was appointed on the application of a creditor in Dumvillo v. Ashbrooke, 3 Russ. 98 ; see also Knapp v. Williams, 4 Ves. 429. The re- port of the case of Dumville is very meagre, but it is made the subject of one or two remarks in the case of Dowry v. Barnes, 27th Nov. 1826, 3 Russ. 94, where it was cited as an authority for the Court appointing a receiver of rates assessed by Commissioners under a Local Paving Act, but this they 78 CIRrUMSTANCF.S IN W IHCII FACTORS AUK ArrOINTED. declined to do, holding that, instead of resorting to a Court of Equity, tlie mortgagee should obtain a viandamvs by the Court of King's Bench to make tlic Commissioners levy the rates and also apply them to his payment, as there was never a case of a receiver's appointment where the rates were to be fixed by a future assessment, and to be collected at a future period. The case of a receiver of tolls was dilferent, because there there were fixed payments to be received — indeed they were in the nature of rent ; whereas in the case of rates there is no fixed sum to be paid : it is the Commissioners who are to impose them, and until their imposition nothing exists for a receiver to collect. The principles tlius enunciated seem of general application, although an excci)tion would seem to obtain in Scotland in reference to the Managers of Burghs, as will be shewn when wc come in our Third Chapter to speak of the powers with which the Court arc in the haltit of investing them. 79 CHAPTER IT. THE PARTIES TO FACTORIAL APPOINTMENTS, &C. The parties who may apply to the Court for a factorial appointment belong, as do all who can be parties to the judicial proceeding connected with the factory, to two classes — those who have the right at common law, and those on whom it is conferred by statute. The first class is the more extensive, and comprehends generally every party having an interest by relationship or otherwise in either the party or the property sought to be put under judicial management. Minors have very frequently been the petitioners for curators bonis to themselves; Buccleucli, 10th January 1758, M.7455; Roberts, 11th July 1839, 14 F. C. 1059 ; Ogilvy, 2d March 1849, 11 D. 1029 ; M'Neill, 8th March 1849, 11 D. 1029 ; Webster, 27th Nov. 1849, 12 D. 911. In the first of these cases two of the minor's relatives were also petitioners. A question hence arises as to whether it is necessary in petitions by the minor to appoint &, curator ad litem to him in the first place, and in regard to it a difference in practice obtains in the two Divisions of the Court ; the First Division think that step unnecessary, while the Second Division appoint a curator, except in the case where relatives are not petition- ers, but called as respondents ; Carter, 21st Jan. 1857, 19 D. 286, and Wilson, 22d Jan. 1857, 19 D. 286. It would seem that tlie Second Division think the precaution neces- 80 TIIK PAUTIKS TO FACTOIUAF, AlTi >I NTMKN'TS. sary in those cases where, from the concurrence of tlic rela- tives as petitioners, there may arise a presumption against the minor's freedom of clioice of tlio party suggested as curator bonis, a freedom wliicli it will be afterwards seen that tlie Court from the earliest times have taken means to pro- tect and vindicate. Whrre the Court consider it unneces- sary to aj)point a curator ad litem, they proceed on the sup- posed analogy of the statutory form of choosing curators by a minor in an action raised under the Acts 1555, cap. 35, and 1072, cap. 2. It is to he observed that, in proceedings un- der these statutes, the Court appoint a delegate to sujicrin- tend the making up of the curatorial inventories, and that the analogy derivable from procedure under statutory enact- ment can hardly be correctly extended to procedure adopted at common law ; the more so that it is the common law which has provided for the minor's protection by the institu- tion of the office of a curator ad litem, and made it parsjudi- cis U) afford this protection ; Ersk. i. 7, 13. As we shall see immediately the first step after a married woman presents a petition fur a factor, without her husband's consent, is to ap- point a curator ad litem to her ; and where minors apply for a factor loco tntoris to their i)npil brothers and sisters (as was (lone in one case to be menti(.>ned), the Court would have to deal according to the common law with a case to which the fancied analogy above alluded to would not extend ; see case of Stark, 3d Dec. 174G, I^I. G291 (noticed below) ; also cases of Alc<.(;k, 3d June 1840, 2 D. 1001, 15 F. 1071, and again, 2d June 1855, 17 D. 785 ; and Davidson, 18th June 1857, 19 D. 802. The question as to the comj^ctency of a party admittedly incapable being the petitioner for a curator bonis, and of the Court being entitled to proceed with a curator ad litem was mooted, and, although not determined, still thought to])e an imprudent experiment in Mackenzie, 21st Jan. 1845, 7 D. '283. THE PARTIES TO FACTOBIAL APPOINTMENTS. 81 It being as much a principle of natural law as of the com- mon law which is recognised in the statutes just mentioned, the nearest relations of the minor both on the paternal and maternal side can petition for a factor loco tutoris to a pupil, and for a curator bom's. The mother and her father applied for a factor loco tutoris in Cowan, 19th Jan. 1788, M. 7452, while the mother alone was the petitioner in Logan, 2d Feb. 1828, 6 S. 477 ; Grant, 2d Dec. 1847, 10 D. 194 ; and Eae- burn, 2oth Nov. 1851, 24 Jurist 129, 1 Stuart 56. The pupil's mother, with consent of her second husband, peti- tioned in Eoss, 11th March 1857, 19 D. 699. The pupil's next of kin were the petitioners in Macintyre, 21st Dec. 1850, 13 D. 951 ; and his maternal uncle petitioned in Napier, 27th June 1851, 14 D. 10. The case above alluded to, where certain minors obtained the appointment of a factor loco tutoris to their pupil brothers and sisters of an- other marriage, is Wood, 19th May 1849, 11 D. 1494. Where the sine quo non of tutors-nominate dies, the others can peti- tion for a factor, Donaldson, 21st Dec. 1770, M. 16364 ; so also a tutor or curator to a special subject may apply for a factor or curator bonis on the minor's other estate, Crawford, 11th March 1828, 6 S. 749. A tutor or curator ad litem can competently petition for a factor loco tutoris or a cura- tor bonis, in order to the discharge of the opposing Ktigant (Thomson, 14th July 1841, 16 F. C. 1307), as that is beyond his powers, Stephenson v. Lorimer, 16th Jan. 1844, 6 D. 377 ; Pratt, 28th June 1855, 17 D. 1006. The litigating debtor would likewise have a title to become petitioner. EngHsh guardians ^f a pupil cannot act in reference to heritage. Young, 8th July 1831, 9 S. 920 ; and may petition for a factor, Wight, 27th June 1837, 15 S. 1197; Viscountess Alford, 19th Feb. 1851, 13 D. 950 ; Lamb, 11th March 1857, 19 D. 099. Where the pupil's father had conflicting inte- rests to those of his child, he applied and got a factor in Earl of Buchan, 21st Dec. 1839, 2 D. 275, and Mason, 19th July 82 THE TAKTIES TO FACTORIAL AProINTMENTS. lt?ol, 14 1). 12, on tlio piiuciplc of tlie case of Donaldson, 13tli Nov. 1629, M. 10253, where a tutni-dativo asked the Court to nominate tutors ad litem to his ward, because he was to intent process against tlie pupil. Where the father was alive but bankrupt, tlie other nearest relatives obtained the appointment of a curator bonis and factor loco tutoria to his children ; Johnstone, 11th July 1822, 1 S. 510. A party, who was paternal grandfather of two illegitimate children (in the eye of law no relative at all) whose mother was alive but of unsound mind, petitioned for a factor loco tutoria to them in Buckie, 11th March 1847, 9 D. 988, 19 Jurist 434. Where a bastard, who had hitherto subsisted on the charity of three individuals who had furnished him with board, lodging, and education, had succeeded by his maternal grandmother's death to some property, tlicse three indivi- duals petitioned for and obtained the appointment of a factor loco tutoris; Davison, 7th IMarch 1855, 17 D. G29. Where a pupil was on the poors' roll, and his connections were not known, the Cummitteo of ]\ranngement of the Heritors and Kirk-Sossion of the Parish got a factor Joco tutoria ap- pointed ; Black, 8th March 1839, 1 D. 670. Trustees, who have as a creditor a party in pupillarity, would seem, on the principle of cases immediately iifter-mentiuned in connection with the applicants for a curator honia to a party incapax, to have a title to obtain a factor loco tutoria appointed in order to their own discharge (see p. 90, infra). The [)arty who is entitloil to be tutor-at-law is allowed to petition for a factor loco tutoria, on the ground that his re- sorting to that proceeding implies a declinature to undertake the duties of the common law office ; Napier, 27th June 1851, 14 1). 10; Russel, 27th June 1855, 17 D. 1005. The same principle regulates tlio compctoney of the nearest male agnate petitioning for a curator honia to a i)arty incapax; Lockhart, 17th July 1857, 19 D. 1075 ; and indeed, in regard t'j applications for such apjiointmonts, a remoter interest has THE PAKTIES TO FACTORIAL APPOINTMENTS. 83 been sustained as giving the title necessary. Tlie wife and children of a party, rendered incapable of attending to busi- ness by paralysis, got a curator honis appointed to him in Anderson, 18th June 1748, M. 7439. A brother of the party incapax applied in Henderson, 2d July 1801, M. 14982 ; and that he could do this, although himself a minor, is deducible from the decision in Stark, 3d Dec. 1746, M. 6291, where a pupil with consent of his tutor was found entitled to sue out a brief of idiotry against his elder brother. The lunatic's sisters were petitioners along wdth the brother' in Grierson, 30th June 1840, 2 D. 1234 ; and it was the brothers-in-law and sisters-in-law of a lunatic widow who got a curator ap- pointed to her in Connon, 20th June 1848, 10 D. 1366, it being the fact that her relations if existing were unknown. The incapable's stepfather was the leading petitioner for a curator bonis to him in Spence, 13th Dec. 1834, 13 S. 199. The sister-in-law of the party inca'pax applied for a curator in Wright, 28th Kov. 1849, 12 D. 911, but there she was the mother of his next of kin, who were pupils. The next of kin can undoubtedly be applicants, S^^eirs, 4t.h July 1851, 14 D. 31, 23 Jurist 610; Smith, 24th Jan. 1852, 24 Jurist 172; Allan, 16th July 1852, 24 Jurist 635, 1 Stuart 1085 ; and so can the heir-at-law, Dewar, 21st Jan. 1834, 12 S. 315 ; and also the next heirs of entail, Lockhart, 18th July 1857, 19 D. 1075. Certain friends who had previously been named by the party incapable to take charge of his affairs and his person, in the event of his incapacity, w^ere the petitioners in How- den, 9th March 1833, 11 S. 561. Trustees named by the father to administer an annuity for behoof of a fatuous son were the petitioners for a curator bonis to him in Kirk, 21st May 1836, 14 S. 814. This case, and others to be afterwards mentioned, in regard to the right of trustees to petition for a factor to take and administer special legacies and sums which they are bound to pay, seem to support their title to f2 84 'llli: TAKTIKS TV FACToKlAI. Al'I't (INTMKNTS. petition I'ur a curatwr boiiia to a lunatic cruelitor, in order that tlioy may obtain a valid discliargc (see \t. iJU, infra). Tin- heritors oi' a ptirisli obtained the appointment of a curator bonis to a parochial sclioohnaster who had becomi- insane, as they had to make arrangements as to the school, and his father refused to interfere on his behalf; Sir C. W. A. Ross, 11th Marcli 1851, 13 D. 'JoO. A curator was ap- pointed on the i)etition of the person in whose house the lunatic had been placed by a deceased curator, it being stated that no party had inquired after lunatic, and her relatives were unknown ; IMacpherson, 28tli Nov. 1850, 13 D. 950. A foreigner having l)ecome insane, the lady with whom he resided petitioned and got a curator to him in Bonar, 18th June 1851, 14 D. 10. Where a party became incapax the family law-agent obtained the appointment of a curator bonis to him ; Uoi)0, 20th ]\[ay 1848 (not reported) ; Mason, 22d Jan. 1852, 24 Jurist 1G8, 1 Stuart 204. In the former case there was great uncertainty as to the party's relatives, and in the latter the party's only relatives were in India. Undi-r the Lunacy Act (20 and 21 Vict , c. 71, § 81) the Board or the Account^int of the Court of Session, where they have reason to believe or suspect that the i)roperty of any lunatic is not duly protected by Ixing under judicial management, is authorized to report llie matter to the Lord Advocate, and if his Lordship be satislied that such is the case, it is made competent lnr liini to apply to the Court for the appointment of a curator bonis. Law-agents likewise have been held entitled to petition for a factor on the estates of parties deceasing intestate, where there was uncertainty as to the jiarty's relations ; Hope, 14th Nov. 1850, 13 I). 951 ; Dalmahoy, 4th July 1854 (not reported, but mentioned in "Wood, Gth i\larch 1855, 17 D. 580). Even a house-agent has obtained the appoint- ment of a factor on the property he managed, where the party died and there was uncertainty as to the party entitled THE PARTIES TO FACTORIAL APPOINTMENTS. 85 to it; Liviiigstoji, Fel). 1855 (not reported). A common agent in a ranking and sale, where he had instructions to that effect from the heritable creditors, got a factor appointed on a portion of the estate; Inglis, 26th Feb. 1850, 12 D. 913. In this case it was the instructions of the creditors who had appeared in the process which constituted the peti- tioner's title ; &nd creditors have been held to have a right to get a factor ajjpointed on the estate of a debtor dying intestate ; Carmichael, 12th July 1700, M. 7454 ; Hope, 26th Feb. 1850, 12 D. 913. But where a party alleged him- self to be a creditor, and his debt was unconstituted, it being ex facie prescribed, it was found that he had no title to apply for a factor on the estates of his deceased debtor at a distance of three years from his death, and while a party who was ready to make up a title was in possession, and offered caution for his debt if due ; Macdowall, 24th Nov. 1849, 12 D. 170, 22 Jurist 24. The trustee on a sequestrated estate, where he instructed the necessity of a separate management of certain heritable subjects, got a factor appointed ; Esson, 19th July 1851, 14 D. 10. At the same time, the Court have been very jealous of creditors petitioning for a factor on the estates of a deceased debtor, as the adoption of that course may lead to injustice as between classes of creditors, and to confusion regarding the remedies appropriated by law to each. Fountainhall, in the above-mentioned case of Carmichael, reports that the Court demurred to grant the application "because the estate was not encumbered nor affected by diligence or adjudications, in which case only, during the ranking of creditors, the Lords used to name factors ;" but the case being extraordinary in respect of the absence of the heir from the country, he being the party under the Act 1 695, c. 24, to bring the estate to sale for behoof of the creditors where the estate is not bankrupt, they appointed a factor " only for a year, in which time the apparent heir might return, and only to intromit with what 86 THE PARTIKS TO FAt'TOIlIAL ArrOINTMEN'TS. falls to the heir ; for as to the b3'gonc rents and stucking, these falling luulcr executry, they (the creditors) might apply to the commissaries and get a warrant to dispose on these ; for where law has provided a remedy, we arc not to recur to extraordinary methods." The concluding remark of the reporter is, that " in such cases the Lords have varied, sometimes allowing a factor, and at other times refusing ;" and their doing so is not to be wondered at, considering the couHict of legal principles, as applicable to the estates of dead and living debtors, in which they involved themselves. The difficulties hence arising ultimately led to the enact- ments on the subject in the late Bankrupt Act (19 and 20 Vict., c. 79), which will be noticed in reference to the title of parties applying for statutory factors. At common law, however, where the representative of the debtor is known, and is abroad, it seems to be the preferable course to obtain a factor loco absent is to him instead of a factor on the estate of the deceased, as by such an appoint- ment there would be secured to the creditors all the advan- tages of their debtor's heir being in Scotland, and not only would the factor be a contradictor in any proceedings they might institute to attach the estate, but after making up a title he might, with or without (as he chose) special powers, cither sell for the satisfaction of debts, or bring a ranking and sale under the above-mentioned Act IGOa, c. 24 ; the competency of which latter course is decided by Paton, 24tb July 17So, J[. 4071. That creditors have a title to obtain a factor loco uhsrutis to an heir abroad, whether cnpax or not, is direcily established by Hope, 26tb Feb. 1850, 12 ]). 913 ; as indeed it was deducible IVoni Ibe ]>iin(i]ilo on which the Court decided that crcdit(»rs had a right to get such a factor nominated to a party furth of Scotland, who was himself their debtor; Forbes, 5th July 183(1, 14 S. 1093; Taterson and Co., 7th March 1851, i:'. D. 951. \\ itlioiit the absence of Hioir debtor or some other siiecial THE PARTIES TO FACTORIAL APPOINTMENTS. b I circumstances to justify the Court's interference being alleged, they will not in the ordinary case allow creditors to petition for a factor on the estate of a debtor alive, except where their debtor is a corporation which has become insolvent as in the case of the Burgh of Lochmaben ; Beck, 5th March 1824 (not reported, but noticed in Beck, 30th June 183G, 14 S. 1056). In the case of Broomhall's Creditors, 24th Dec, 1702, M. 14341, a bill for a factor was refused, in respect the creditors presenting it were merely personal ones, and there was no ranking depending, and none except real creditors could seek summarily to dispossess the debtor, but a bill by the real creditors was sustained and remitted in order to their being heard as to the necessity of the measures x^i'o- posed. Kext, in order of time, we have the case of Hunter, 27th Dec. 1711, M. 14344, where a factor was appointed on the petition of a creditor ; but the circumstances were very special. The petitioner was the collector of cess for Ayr- shire, and as, from the factor in the competition of the credi- tor of Brockloch having died, the estate had lain waste and unprotected for ten years, and the petitioner meanwhile paid its proportion of cess to the general receivers, for his own reimbursement, and in security of the cess in time coming, he craved the appointment of a factor, which was granted. Necessity was held to justify this course, as " such cases in human accidents must have a remeid." The cautioner of a factor or other party removed as suspect would seem, on the principle of this case of Hunter, to have a title to get a factor appointed on the estate thus left unprotected, in order to its preservation for behoof of himself and all others con- cerned ; see also Welsh, 14th Feb. 1778, M. 16373 ; Eaton and Cowan, 9th June 1826, 4 S. 695, affirmed 4th July 1828, 3 W. and S. 246. In the case of Graham, 13th Feb. 1745, ]\1. 14345, the petitioners were personal creditors, and they urged, as the ground of their application, " that so arrestments and se<|uestrations of each particular year's rent 88 THK TAUTIES TO FACTORIAL APrOINTMENTS. miglit 1)0 iirevented." Tlie petition was* opposed \ty other creditors, wlio argued that tlie roiindatiun of sequestration by the Court was the coHipelini;- diligence of creditors, that is to say, wlien the rent Avas allected then it miglit he seques- trated, and when the land was allected then it might be sequestrated ; but as no diligence had here allected the land, it was not within the power of the Court to sequestrate it ; and, accordingly, the petition was refused. The position of the creditors as to their right to obtain a factor on the estate of a debtor alive thus resolves itself into that of liti- gants regarding the estate ; and in that view, to the state- ment of the prineiples, which regulate the question of title as regards litigants, a general reference is all that is neces- sary. Besides the creditors whose individual debtors are dead, or. those whose debtors are alive, there is a third class of credi- tors, who, in certain circumstances, have been found entitled to come to the Court for a factor. These are trust-creditors, whether the trust be constituted by a testamentary or other deed; and tlie event which justities their application is the failure of the trustees, as explained fully in our first chapter. The title of creditors, for whose behoof a trust has been execu- ted by their debtor, to apply for a factor thereon was recog- nised in Hamilton v. Littlejohn, 8th July 1834, 7 W. and S. 380. Creditors of testamentary trusts are of two kinds, — either onerous creditors of the trust-estate, or legatees and other beneficiaries. The cases, in which onerous trust- creditors obtained a factor on the trust-estate, are Sheriffs, 24th January 1829, 7 S. 314, 4 F. 408; Keid, 2l8t Feb. 1852, 24 Jurist 206 ; Shaw v. Steele, 28th Feb. 1852, 24 Jurist 200, and Hth March 1852, 14 D. 702; see infra, p. 113, as to the rights of such creditors to get a factor under section 104 of the BanUnqit Act r.» and JO Viet., r. 71). There are numerous rases in which trust-beneficiaries have been the pftifionfrs ; Wr.therspnon.'!, 15th T^or. 1775, M. THE PARTIES TO FACTORIAL APPOINTMENTS. 89 7450 ; Grant, 2cl March 1790, M. 7454 ; Eoughead, 5th March 1833, 11 S. 516 ; Walker, 30th May 1837, 9 Jurist 480 ; Cairns, 19th Jan. 1838, 16 S. 335 ; Douglas, 14th Dec. 1839, 2 D. 1263, 16 F. 1319; M'Aslan, 17th July 1841, 2 D. 1263 ; Barry, 11th March 1847, 9 D. 917, 19 Jurist 419 ; Patrick, 6th March 1850, 12 D. 911; Morris, 27th Feb. 1858, 30 Jurist 369, 20 D. 716. The trust-beneficiaries and the trustees in a testamentary trust were the petitioners for a factor on the trust-estate in Taylor, 18th July 1857, 19 D. 1097, and 14th Nov. 1857, 20 D. 52. Trustees alone have in some cases been allowed to peti- tion for judicial management of the trust-estate. Thus where they have power to resign their office, they will be allowed to petition for a factor to succeed them ; M'Kenzie V. Grieve, 20th Dec. 1828, 7 S. 223. Where one of two sur- viving trustees refused to go on with the management, the other got a factor on the trust ; Forbes, 14th Feb. 1852, 14 D. 498 ; and where two trusts were constituted in favour of the same parties as trustees, but from irreconcilability of interest they could not manage both, they got a factor on one of them ; Halcomb, 2d July 1853, 15 D. 861. There are other parties who, although they may possess no such direct interest, have yet a title to ask for a factor to continue the management of a trust. Thus, where a sur- viving trustee died, a factor was appointed on the petition of his widow and executrix ; Sheriffs, 24th Jan. 1829, 7 S. 314, 4 F. 408. It would appear, from what fell from Lord Gifford in the House of Lords in Hill v. Burns, 14th April 1826, 2 W. and S. 80, that the heir or successor of a tes- tator in either heritage or moveables would have a good title to apply for a factor on the deceased's estate. Where the bequest is for a charitable purpose, as in that case, a public interest, such as that of the Lord Advocate (see supra, p. 84), the Commissioners of Supply or Justices of Peace of the County, the Magistrates of the City or Town where the 90 THE I'AKTIKS TO FACTORIAL APPOINTMENTS. hospital is to be erected, and even the interest possessed by members of tlie community to be benefited by the charity, or the incorporated trades of the place, will entitle them to appear and ask the Court's assistance in vindicating the be- quest by the appointment of a factor or otherwise ; Com- missioners of Berwickshire v. Craw, 18th June 1G78, M. VM')\ ; !>rerchant Company and Trades of Edinburgh v. lleriot's Hospital, 9th August 17G3, U. 5750; Bow v. Patrons of Cowan's Hospital, 6 Dec. 1825, 4 S. 280 ; Ferguson v. ^Rlarjoribanks, 1st April 1853, 15 U. 637 ; Magistrates and Trades of Dundee v. Lindsay, 14th Dec. 1856, 19 D. 168. Presbyteries have a title under the act 1633, c. 6 (1 Car. i.), to take measures to protect bequests for charitable purposes within their bounds. See also Boe, 11th Nov. 1857, 20 D. 11. Where a subsidiary trust under a settlement has been created, and the trust-legatees under it fail in any way, the trustees under the settlement may petition and get a factor to whom to pay over the legacy in trust ; King's College v. Ogilvic, Elchies' Rep. v. Trust, No. 11, and Notes v. Juris- diction, No. 21 ; Marischal College v. liamsay ; Elchies' Rep. V. Jurisdiction, App. ii.. No. 21, both under date 27th Jan. 1741 ; Campbell, 26th June 1752, 'M. 7440 ; Macdowall, 20th N()vend)er 1789, M. 7453 ; Wylie, 28th June 1850, 12 D. 1110. Wliere trustees are instructed to hand over a subject or pay a legacy, and they cannot otherwise fulfil the testator's instructions and oblain a valid discharge, they can apjdy for a factor to receive and discharge the same ; see cases of King's and Marischal Colleges and Wylie, supra ; also Gilmour, 14th Jan. 1857 (not reported). They would seem on the same principles to be warnmlcil in applying for a curator bonis to a party incapable, in order to liis receiving from them what they are due to tliat party, and granting them a discharge therefor. The interests of such a party would thereby be more efl'ectually protected, at the same tiinf Ihfit the tru.stecs would be no less validly discharged THE PARTIES TO FACTORIAL AITOINTMENTS. 91 than by raising, as is the more usual course, a multiple- poinding and exoneration in which, on paying the fund into Court, a judicial discharge would be obtained . To the course adopted from such considerations the Court have more than once shown an inclination, although perhaps, in strict prin- ciple, the consignation of the fund in Court by the debtor, there to remain useless so far as the party principally inter- ested in the application of the annual proceeds was con- cerned, is the more legal and correct way. Thus where the debtor in a bond, payable to a lady in liferent for her liferent use allenarly, and to her lawful children equally in fee, was desirous to pay off the bond, but raised doubts as to the competency of a discharge by the liferentrix, on her peti- tion the Court appointed a factor on the fee of the sum so secured, in order to concur in the discharge to the debtor, and to re-iuTest the sum to be received from him on the same destination ; Gowans and Prentice, both on 9th March 1849, 11 D. 1028. The debtor could have opposed such an appli- cation, and was therefore made a party to it. It is thought that he might have made the application. The fiars could undoubtedly have done so, for in Thomson, 10th July 1837, 19 D. 964, the fiars and liferentrix in a trust in very similar circumstances petitioned and got a factor. On this principle a conditional institute or substitute may apply for a factor on a property, which the heir-at-law of their author pos- sesses, alleging the intention to reduce the petitioner's title on the head of deathbed ; Keiling, 15th June 1839, 1 D. 1024. The Court's willingness to interfere to protect pro- perty in the hands of a party having an interest adverse to that of the petitioner has been often expressed. A widow and children obtained the appointment of a factor on the estate of the husband and father, because it was in the hands of his successor, who had, it was alleged, burnt the deeds under which burdens on his legal rights in their favour were constituted; Lady Walker Drummond, Utli yj THK lAliTIKS TO FACTOIUAL Al'POINTMKNTS. March 185G (not ruportoil, but iiotictil in \\'i-v,i:lito v. Lind- say, 20tli Nov. I80G, 19 1). T)?); uii.l Walker DninunoiHl, VMh June 1857, 19 D. 859. The partii'S to an ante-nuptial marriage contract may, on the failure of the trustees therein named, apply for a factor under it; Nicolson, 29th Jan. 1S50, 12 D. 911; Melville, 8tli ]\Iarch 185G, 18 D. 788 ; or one of the spouses may do so, and if it be the wife who is the petitioner, the Court will give her a curator ad litem to enable her to make and follow out the application; Alcock, 3d June 1840, 2 U. 1001, 15 F. 1071, and again 2d June 1855, 17 D. 785; Davidson, 18th June 1857, 19 D. 8G2. The beneficiaries under such deeds have a good title to get the management continued by the appointment of a factor where it would otherwise fail ; and in fact the whole decisions, relative to the parties sufliciently interested in testamentary trusts to obtain a factor on them, may be held as applicable to trusts under marriage contracts. A wife, vindicating her rights to the ])roceeds of her lieritage in a reduction brought by her husband, will get a factor thereon ; Taterson v. Waddell, 18th Nov. 1837, 16 S. 79, 13 V. C. 97. This is on I he priiici|il(' thai, where other- wise entitled to ask the Court to oust a party from possession, any of the litigants in a cause may competently present a petition to the Court for a factor to manage the property or estate. The claimants on the fund /;/ mcdi'o in a multiple- poinding may petition for a factor thereon ; (,'hristy v. Paul, 10th July 1834, 12 S. 91 G; see 2 IVll's Com. 300. The prospect of a competition relative t(t an estate, where no party is in possession, will justify the Court in aiipointing a factor on the application of one or more of the claiinants ; Young, 15th Nov. 1S51, 13 ]). 950; M'Culloch, lllh Dec. 1851, 14 I). 311 ; Livingston. 2d Jtily 1853, noticed under IGth Jan. 1857, 19 1). 280. During the dependence of a sub- mission regarding what titb' the purehaser f>f a projurfy can THE PAllTIES TO FACTORIAL APPOINTMENTS. 93 demand, any of the parties to it can get a factor on the pro- perty ; Esson, 19th July 1857, 14 D. 10. The seller of an estate, where an alleged purchaser refuses implement of the bargain after getting possession, got a factor appointed on it, an action of declarator being about to be brought by the petitioner ; Buchanan, 19th Dec. 1833, 12 S. 232. A factor on a partnership estate may be petitioned for by a partner of the dissolved firm ; ]\rarshall v. Anderson, 5th June 1841, 3 D. 989, IG F. C. 1038 ; Abercrombie, 10th March 1857 (not reported). A partner of an existing firm, or in an existing adventure, may petition for a factor there- on. Bell, 11th March 1857, 19 D. 704 ; and so can any one of several -pro indiviso proprietors, Macintosh, 9th March 1849, J.l D. 1029. Shareholders in a company have a title to apply for a factor whether the company be incorporated or not, Maxtone v. Muir, 9th July 1845, 7 D. 1006, but directors of a company, qua such, must show a special authority for such a proceeding ; Directors of Southern Bank of Scotland, 10th July 1849, 15 D. 1494. We have already had occasion to remark that creditors had a title to get a factor loco absentis appointed to the heir of their debtor. Besides parties with a pecuniary interest in the preservation of the absentee's property, those con- nected by the ties of relationship have a title to apply for such an ofiicer upon the principles recognised in the cases of parties in Scotland, incapable themselves of attending to their interests. Thus a brother of the absentee was the petitioner in Stuart, 13th July 1708, M. 7454, and his nearest relation in Scotland was the applicant in Knight, 7th Feb. 1833, 11 S. 366. There is, however, no restriction imposed as to the residence of any petitioner, respondent, or objector, other than that, if outwith the jurisdiction of the Courts in Scotland, he must appoint as mandatory a party within Scotland likeas in other suits; Macfarlane, 6th March 1857, 19 D. 656. 94 THE rAKTJKS TO FACTOKIAL Al'roiNTMF.NTS. The last class of common law officers, the petitioners for wliose appointment we sluill here notice, is managers of biirglis. In the first case met with in the books, the petitioner was a lady who for want of a magistracy could not obtain herself infeft in certain tenements in Edinburgh, and her right to petition was sustained ; Donham, 1st July 1740, M. 7435. Tlie city-dorks of Ediidmrgli were the })ctitioners in the next case on 3d July 174G, i\I. 7436, and also again on 31st July 1746, M. 7437 ; and the petition of a party who was incarcerated for debt, and was willing to dispone to his creditors his whulc eflects, in order to their granting him aliment or a discharge, which proceeding was only com})e- tent before the magistrates of the city, of whom there were none at the time, for the appointment of parties to fulfil their duties in this respect was granted in Braidwood, 18th July 1746, M. 7436. The town-clerk of Inverkeithing was the petitioner in Walker, 25th July 1761, U. 7447. Not only the conjunct town-clerks, but also the parties, who had been illegally elected magistrates and councillors, were the peti- tioners in the case of the burgh of IMontrose, mentioned in the 33ook8 of Sederunt under date 11th June 1817; and managers of the burgh of Aberdeen after its disfranchise- ment in 1817 were appointed oji IJie petition of twenty "burgesses of guild in Aberdeen," and ten " members of the eeven incorporated trades of Aberdeen ; " see the entry in the Books of Sederunt, datc^d lltli March 1818. The parties who were elected magistrates and councillors of Inverness at the election, which was found null, as being such, and also " burgesses of guild and of craft of the said burgh," obtained managers on 19th Dec. 1818. An entry of that date in the Books of Sederunt contains the proceedings, which are also noticed in the case of liobertson, 7th Pec. 1821, 1 S, 183. The parties who had complained of the illegality of the last election were the j)etitioner8 for managers to the burgh of Pittenweem, the proceedings in which ajtplication appear in THE PARTIES TO FACTORIAL APPOINTMENTS. 95 the Books of Sederunt under date 17tli June 1824. The town-clerk of the burgh, and two persons, who were members of the late and present council, were the petitioners for the appointment of the parties elected magistrates and council as managers, in consequence of doubts having arisen as to the validity of the election, and to obviate any objections thereto in Forbes v. Watt,22d Dec. 1838, 1 D. 351. Certain of the burgesses and inhabitants of Anstruther Wester were the petitioners in Kidd v. Young, 11th March 1853, 15 D. 555. A duly qualified and registered voter under the lie- form Act can petition ; Whyte v. Scott, 7th March 1854, 16 D. 798. The decisions as to the parties entitled to petition for managers of burghs leave open to discussion the right of many parties to do so ; and it is not now likely from the legislation, with a view to prevent disfranchisement, which has taken place of late years, and which is noticed in our first chapter, that opportunities of settling the undecided points will be afforded. At the same time it is evident that not only are parties, having an interest under the Charter of Incorporation or Sett of the Burgh and the Beform Acts, but also all, who can qualify prejudice in any way by the non-existence of a magistracy, are entitled to apply for managers. Creditors of the burgh have the interest neces- sary to give a title ; Beck, 30th June 1836, 14 S. 1056. Before taking into consideration the title of a petitioner for a factor under the statutes, which authorize such appoint- ments, it is as well to notice who have a title to petition for the recall of a common law appointment, with a view to the appointment of another party as a successor in the judicial factory. In the ordinary case, the fact of a previous judicial appointment will go far to make it unnecessary of new to instruct circumstances demanding the Court's interference, where the lapse of time is not inconsistent with the allega- tions in the petition, as might happen in the case of factors 9lj THE PARTIES TO FACTORIAL Ari'OlNTMENTS. loco tutoris and curators bonifi to minors. Whore, however, a successor in tlie office of curator bonis to an incapable is souglit, the continuance of tlie incapacity must be proved by certificates, as at first ; ]\[!ickenzie, 21st Jan. lS4o, 7 D. 283 ; Beveridge, 6tli Dec. 1849, 12 D. 912. Tlie application for recall and a successor corresponds very much to tlie action for removing suspect tutors and curators, which was so much encouraged by the Court as to be decided to be in its fullest sense actio popular is; M'Brair, 5th July 1667, M. 16279 ; Welsh, 14th Feb. 1778, M. 10373 ; and petitions for recall of the appointment would be a very proper and convenient form for cautioners or others inter- ested complaining to the Court of the ofhcer's conduct in the management, and getting him either restrained or re- moved. As the Lord President remarked in Eaton v. Cowan, infra — " The cautioners are bound to look after the pro- ceedings and conduct of their principal. If they had con- ceived that he was acting wrong, they might have complained to the Court, and have had him restrained." In the case of Welsh the cautioner of the party suspected was the pursuer of the action, and he succeeded in removing him from office. The fact of the cautioner coming before the Court as a peti- tioner would not alfect the principle of the last-mentioned decision ; Eaton v. Cowan, 9th June 1820, 4 S. 695, aild. 4th July 1828, 3 W. and S. 246 ; Davidson, 8th July 1830, 8 S. 1027. The Accountant-General obtained the recall of the appointment of a curator bonis who had, in consequence of the decision of the Court, on a report by that officer under the rui)ils' I'rotcction Act, become insolvent, and the nomi- nation of a successor in Forsyth, Ist June 1853, 15 D. 708. Great latitude would, it is thought, be allowed to parties who are aware of circumstances which disqualify the present holder of the office, and which would warrant the Court in superseding him by a successor therein; Kennedy, 16th Nov. 1841, 4 D. 12 ; and from the report of the case again as Doud, THE PARTIES TO FACTORrAL APPOINTMENTS. " 97 21st Jan. 1847, 9 D. 511, it appears that the factor loco tutoris, who was formerly threatened with removal in respect of his actings in the office, had to be superseded on account of his becoming bankrupt, A factor loco tutoris who had absconded was superseded by recall of his appointment and the nomination of a new officer in Gould, 17th Jan. 1819, 11 D. 1028. It is at any rate undoubted that parties, who would have a title to obtain the appointment originally, have a title to petition for the recall of the appointment, and for a successor if need be ; Bryce, 25th Jan. 1828, 6 S. 442, affd. 23d July 1828, 3 W. and S. 323 ; Bell, 7th March 1834, 12 S. 531 ; Mackenzie, 21st Jan. 1845, 7 D. 283. Thus trust-beneficiaries have been held entitled to do so when the former factor became insolvent; M'Pherson, 19th Dec. 1840, 3 D. 315; Fraser, 28th Feb. 1849, 11 D. 1028 ; or left the jurisdiction, Bell, 7th March 1834, 12 S. 531. Further, a curator honis or factor loco tutoris can peti- tion for a judicial factor to succeed him on the death of his ward, Macdonald, 20th Feb. 1849, 11 D. 1028 ; or a factor loco tutoris may apply for a curator honis on liis pupil ward becoming insane, Scott, 7th Feb. 1855, 17 D. 362. Any\ judicial officer can petition for a successor at the same time / \/ that he applies for a recall of his own appointment (which r /\ he has a sufficient title to do), where he is obliged to demit ] his present appointment by its expiry, Scott, 7th Feb. ISbbJ 17 D. 362 ; or by change of circumstances, such as his find- ing himself involved in a maze of litigation, while he accepted office on condition that all litigation had already terminated, Tliomson, 14th July 1841, 16 F. 1307; or his own insol- vency, Davidson, 8th July 1830, 8 S. 1027; or his leaving the jurisdiction, Graham Eobertson, 5th Dec. 1856 (not re- ported) ; or accepting a Government or other appointment incompatible with the discharge of the factorial duties, Esson, 5th June 1857 (not reported); or the death of his cautioner, and lus inability to find another, IM'Ewan v. G 98 Tin; PARTIES TO FAl'TOUIAL Al'I'OlNT.MF.NTS. Druiuuiunil. liTlli June 18j7, I'J I). 'J'M. The- uthcor uiJijlicJ for and obtained recall of his appointment as factor loco tutoris for one child, at the same time that he applied for recall of the jiulicial nianai:;enient and discharge as regards the other children, to whom he had been judicial guardian, on the grounds that his cautioner who was an old man was anxious for his discharge ; that the affairs of the family had been successfully extricated from the confusion in wliicli the ollicer had found them; that his own vocations ren- dered it "more inconvenient than formerly to be called on to dedicate his time to the affairs of others ;" and that his intromissions were embraced in the same accounts, and the expense of an audit must be incurred at any rate, in Wood, lltb Dec. 1857 (not reported). In this case the officer did not petition for a successor in the existing factory as re- garded one of the children, because some of the parties he called as respondents simul ct scmel with his application asked the Court to appoint a successor. Where it was shown that a factory under § 164 of the Bankrupt Act would be more advantageous, in respect that the oflicer could under it get special powers on i)roving merely exi)ediency, the Court recalled a common law factory, and appointed the same party statutory factor; Mackay, 10th Feb. 1859 (not yet reported). On the factor's or curator's death his executors can obtain a successor to him, Balingall, iJd June 1853, 15 D. 711 ; and if the factor or curator has instituted proceedings for this purpose, they would, on his death, be entitled to sist them- selves as parties thereto, and carry them on. The question of sisting parties to petitions generally is considered in our last chapter. The principles of the above decisions ai)j)ly to the recall of appointments of parties as managers of burghs. Tlius a burgess petitioned for recall, as one of the managers had left the country, nnd tin- otiicr was insolvent, and obtained a now appointment in Millar, 20th June 1^40, 2 D. 1181. THE PARTIKS TO FACTORfAL AI'I'OINTMKNTS. 99 When a limit to the endurance of the Court's appoint- ment has been made, the original petitioners can, on show- ing cause, obtain a continuance of the judicial manage- ment. It is even thought that their officer would be held entitled to do so ; at least in the case of burgh managers the parties appointed to the office and whose term was about to expire petitioned for and obtained a renewal of the manage- ment in Eobertson, 7th Dec. 1821, 1 S. 183, and Pittenweem case, 7th June 1825, reported in the Books of Sederunt. The general principle of law is that the judge who appoints is, in the first instance at least, the only Judge competent to the recall of the appointment, Esson, 14t]i Feb. 1842, 4 D. 739 ; but the act 20 and 21 Vict., c. 26 (25th Aug. 1857), did not transfer to tlie Lord Ordinary petitions for recall of a factor's appointment, and they must still be presented to the Inner House, although applications for discharge and exoneration are directed to be taken before him. The con- sequence has been that recall is now not included in the prayer, and it is only the factor's discharge and exoneration that is sought. The anomaly thus introduced becomes much more apparent, when we come to consider the practice in reference to the applications hitherto deemed necessary to have the judicial management of an estate, and the nexus thereby effected terminated and extinguished ; see remarks of Lord Cuninghame in Key, 12th Dec. 1840, 3 D. 252, and of the Judges in Primrose, 21st June 1851, 13 D. 1214. In a case previous to the act where the curator bonis had died, and a successor was applied for by the executors of the de- ceased curator and nearest relatives of the lunatic, no recall of the appointment was made, apparently on the ground of the expiry of the appointment by the former curator's death ; Balingall, 3d June 1853, 15 D. 711. This view of the expiry of the judicial office, and the fact of its dispen- sing with any necessity for recall, are further illustrated by the case of Edmond, noticed afterwards in connection "v^^th g2 100 THE I'AUTIES TO rACTOKlAL Al'J'OlXT.MENTS. recall uf tlio factorial management, and liuw that has been aftccted hy the Act of 1857, injra, p. 104. In contradistinction to the recall of a party's appointment to be a judicial factor, there is the recall of the factory itself ; and the object of applications of the latter kind is to put an end to the judicial management altogether, either in regard to the whole or a part of the subject of it, instead of, as in the former, making room by the recall of one appointment fur the Court making a new one in favour of a successor in the management. Eecall of the factory furtlier diiTers from recall of the appointment, in respect that it cannot be com- petently sought by tlio numerous parties to whom we have just seen that the recall of the ap])ointment is competent. Of course the circumstances to justify tlie recall of the fac- tory will be different, and must be fully stated ; but the Court, besides having shown to them sufficient reason wliy the party, or the property, or interest, which they were called on to protect, can now be relieved of that management, Baigrie, 5th Dec. 1840, IG F. 136, must l)c satisfied that the party asking the recall is either the legal guardian of the party, Mars, 9th March 1848, 20 Jur. 308, or the owner of the property. Laird, otli March 1836, 14 S. 653, or possessed of some other legal title therein — c.f/., a creditor who has done diligence — and that the person, or ])roi)erty, or interest under judicial management will not in future be left unpn.tected; Young, 11th July 183!), 1 D. 1242; Robertson, 7th July 1852, 24 Jurist 601 ; Hare, 28th Nov. 1856, 10 1). 99 ; Walker v. Drummond, 13t]i June 1857, 19 D. 859. Where there has been sequestration of a trust- estate and a factor appointed thereon, the trustee can apply for recall of tbc sequestration and factory at any time ; but before granting it the Court will take great care to satisfy themselves of tlie safety of the estate ; jjcr Lord President in Morris, 27th Feb. 1858, 30 Jurist 369, 20 D. 716. Recall ((f tlio factory is the course to be resorted to THE PARTIES TO FACTORIAL APPOINTMENTS. 101 where the parties entitled to oppose a judicial management liave not been called as respondents. Thus where a curator bonis had been appointed to a party alleged to be mccqjax without any service having been made on the latter, he was held entitled to petition for recall ; Gordon, 22d Dec. 1832, 11 S. 235. Where a factor loco tutoris had been appointed on the petition of the pupil's mother without intimation by service on his nearest agnates, they obtained a recall of the factory; Fowlds, 10th Dec. 1836, 15 S. 244. Lord°^ Glen- lee stated in that case, that " it is plain that the Court have named a factor loco tutoi'is under circumstances in which it was not entitled so to do. In regard to the naming of a pro- per factor loco tutoris^ the Court ought first to ascertain if the pupil have no male agnate. And what is the result of this ? That you must hold communication with the next of kin on the father's side. The mother alone is not entitled to have such a factor appointed ;" and the rest of the Judges concurred. Of course, the last sentence was intended merely to apply to the case of a mother being the sole applicant, where there were kin on the father's side ; and thus there is no irreconcilability between this case and those already quoted, by w^hich a mo- ther's title in other circumstances has been fully recognised. Eecall of the factory can be competently sought by the factor, Hare, 28th Nov. 1856, 19 D. 99 ; and in the event of his decease, liis representatives would, it is thought, be held entitled to sist themselves if tlie application have al- ready been presented by him ; or they may make an ap- plication for recall if the necessity for this step can be instructed, Eollo, 8th July 1852, 14 D. 990 {ante p. 98). Tlie above-mentioned case of Kobertson, 7th July 1852, 24 Jurist 601, is, hov.^ever, rather irreconcilable with the decision in Hare's case, where the Court indicated their pre- ference of such applications being by the factor, as they could more readily be satisfied by their own officer tliat the necessity for ju'licial management had passed awRv. Tlie 1<'*J Till-: I'AUTIKS TO 1A( TOKIAI, Al'PUlNTMENTH. Court took orcusiuii sliortly Jit'terwards to (.'Xpluiu. that tlioy dill not there mean to hiy down an absolute rule that such l)etitions coulil only he jireseuted by the Taetor himself, and accordingly, in Livingstone, lUth Jan. 1857, 19 D. '280, the party, who had obtained himself served, and duly completed a title to the subjects under judicial management, applied and obtained recall of the factory. It is not to be doubted, altiiough no case is within our knowledge, that the Crown, in the case of a succession wholly or i)artially intestate, (•t)uld, on the lapse of a sufficient period without the discovery of representatives of the deceased, petition for recall on the ground that it was entitled thereto in its character of ulliinns heres. The title of the Crown's donatary to petition for recall was not subjected to challenge in the case of Viscount Teviot I'. Crs. of Dunfermline, 27tli Feb. 1697, U. 14340. In the above-mentioned case of Livingstone, as in the gene- ral case, the factory was wholly exhausted by the recall ; but where a party shows cause why a factory should be re- called as to a portion of the property under the factor's management, sucli as that he has substantiated a title as heir of provision, whereas the rest of the property will go to the heir-at-law oi' the intestate ancestor, that portion of the property will be withdrawn from the oi)eration of the factory; 3l*(lillvray's Executors v. IMasson, 18th July 1857, 19 1). 1099. In a case such as that last-mentioned, espe- cially if the part sought to be withdrawn iiom the manage- ment is a moveable fund, the application assumes the form of a })etition i>y the party alleging a title thereto for autho- rity to the factor to make over or pay tiie same \<> him; Murray v. Baillie, 24th Feb. 1849, 1 1 D. 7l(i; Allen v. Kobertson, 24th Nov. 185'), 18 D. L»7. Sii- h nvr in fact, applicati«tns for special powers (o the lactor ; biit those tcchnicall}' HO '•ailed arc generally presented by the factor himself, as we shall have occasion to notice in the subse- • jurnt fhaptcr. Tlu' custr>dy of tlK' ward w shall there scf Till': I'ARTIKS TO FACTORIAL APPOINTMENTS. 103 is thus dealt with, and not only has the judicial guardian of the estate a title to make an application in regard to the custody, but so also has the maternal grandmother and agnates; M'Leod v. Hill, 26th Feb. 1833, 5 Jurist 271. But while the competency of applications by the creditors of the estate (Hope, 15th Jan. 1858, 20 D. 390), and other parties interested (such as a party entitled to have his title made up through a party under judicial guardianship, Dick- son, 11th June 1836, 14 S. 958), for special power to the factor to settle with them, would thus seem to be undoubted (Key infra), the preferable form of an action at common law directed against the factor, if he have no ward, or other- wise against the ward (Govan, 20th Dec. 1814, F. C), is resorted to in the general case, Court, 29th Feb. 1848, 10 D. 822 ; M'Gillvray's Executors v. Masson, 18th July 1857, 19 D. 1099, because of the advantages as to the ex- amination of the grounds of the claim and otherwise whicli it presents. If decree goes against the factor, he can then take advice as to applying for power to implement it. We reserve for after-consideration in what cases that is really necessary. In Scotland we are not hampered with the fiction, which obtains in England with reference to suing a receiver of the Court's appointment, that such is an attempt to disturb the Court's possession, and hence a contempt on the part of the person making it ; Daniell's Chancery Prac- tice, 3d edition, p. 1001 ; see also Kussell v. East Anglian Kailway Company, 21st Nov. 1850, 3 Mac. and G. 125, 6 Railway Cases 501. Neither is action against a factor restricted to the Court of Session ; Mack, 17th Feb. 1832, 6 S. 349. The principle, which excludes such proceedings, and has place in the English law, is that an officer of one Court cannot be called on to plead in another (see Rennie, 27th Jan. 1849, 11 D. 457). Petitions for special powers cannot however be dealt with by any authority but tlie Court of Session ; Robertson, 28th May 1814, F. C. li'l TIIK I'AirriES TO FACTOIUAI. Al'l'OlNTMKNTS. The etFect of tlic dcfcctivo euactiiiunts ••f the late act (20 luul 21 Vict., c. 20), to which wo culled attention in re- ference to the recall of a factor's appointment previous to the nomination of a successor, can hardly be predicted ; but it is scarcely possible that the recall of factorial inanaj^cmcnt can be in very many cases (e. f tin" cau.se, and as pre- cedent to his gr.anting di.schargc and exoneration in terms of the njnainder of the prayer. The adoption of this iin lliod has, as its slrong'st objocfion. the .^ubvcr.?ion of the THE TAUTIES TO FACTORIAL AITOINTMENTS. 105 clistinctivG principles between the two kinds of recall with which we have just dealt, the recall of the factory degene- rating into a discharge of the factor, or virtual recall of his appointment in respect of the circumstance that the neces- sity for judicial management has ceased ; see remarks of Judges in Primrose, 21st June 1851, 13 D. 1214. The remedy we have mentioned will be but partial, as it cannot apply to the recall of a sequestration where such has issued against the estate on which the factor was appointed, or of the appointment of a curator bonis to a lunatic recovering, Drummond, 11th June 1858, 20 D. 1101 ; but while cases of sequestration, &c., may be held to be reserved for the Inner House where they are incident to depending actions, that cannot explicate the conflict of jurisdiction which will hap- pen in other cases. Our remarks on the subject of this chapter, as regards those who can be parties to the judicial proceedings con- nected wath a factory at common law, would not be com- plete without noticing who must be called as respondents ; and also who, W'hether called or not, are entitled to compear in the proceedings. The Court's powder to make a valid appointment depends, as we have seen, upon all parties, inte- rested by relationship or otherwise in the ward, or in the estate to be protected in any way, being made aware of the application therefor ; and hence the petitioner should pray for and make service on the ward and all parties interested within his knowledge. More particularly should this ser- vice be attended to in cases of alleged incapacity on the grounds explained in the previous chapter. Personal ser- vice was even ordered where medical men protested against it ; M'Gregor, 23d Dec. 1848, 11 D. 285. Service should also be made upon all those who have preferred claims to succeed to the property of a party dying wholly or partially intestate ; and in this class it would be necessary to include the Crown, if there was a prospect of its succeeding as lOG TlIK I'AKTIKS T(» KACTOlUAl, Ari'OlNTMKNTS. uUimus hcrcs. Wliero there seemed a prospect ol" the lunatic becoming chargcahh' to tlie parisli I'roin the inadequacy of lier estate, lier curator ban in, in asking power to realise it and purciiase an annuity, sought service on the parochial board, and it was ordered ; Innes, 17th July 1846, 8 D. IJll. The Court insist on such intimation being made, and will ex projirio motu order intimation to any other parties to whom it occurs to them that it should be made ; not, liowever, because the consent of such parties " is deemed essential, but in order that they may have an opportunity of stating any rt-lcvant objection to the proceeding ;" Cowan, 19th Jan. 1788, M. 7402 ; Logan, 2d Fcl). 1828, G S. 477 ; Napier, 27th June 1851, 14 D. 10. In this view, service on the cautioner for the factor should always be prayed for in petitions for power to do some extraordinary act of man- agement; Kntlierrord, 25th Jan. 1845. 17 Jurist 152; Geddes, 2Utli June 1858, 20 D. 1174; and if the ward's succession be likely to be affected in any way, however re- mote, the parties likely to succeed to him should be made cognizant of the proceedings by service of the petition. Trustees for the creditors of the heir next after the incapa- ble ward should bo called on this principle. They were, as having a good though contingent interest, found to have a title to o})i>ose the granting of special powers to sell the incapable's lands in Finlayson, 4th June 1835, 13 S. 861. On the ground that there ought to be service to all con- • enied, the Court, in an application relative to the custody of pupils, ex jjroprio mofii ordered intimation to all their agnates in Scotland in Macleod r. lliii, 2(!th Feb. 1833, 5 Jurist 271. This stej* is merely precautionary, and as re- gards the cautioner, the want of service will not limit his liability for the factor's intromissions inconsequence of any special powers he may obtain, as wo shall in a future chapter (I v.) have orcasion to show more fully. (See Chap.V.) Section H of the Pupil's Protection Act (12 iind 13 Vict.. THE PARTIES TO FACTORIAL APPOINTMENTS. 107 c. 51) empowers the Court, in any applications under it for special powers, to make sucli intimation as may be deemed proper ; sect. 34, wdiicli relates to petitions for discharge of the officers under the act, is not so general in its enactments ; under it all parties interested, so far as known, must be called, and not only those so called, but any other parties showing right and interest may appear, and, upon cause shown, open up the audit of the officer's accounts. A judg- ment pronounced in a discharge under the act, if it shall discharge the officer, although in absence, is declared to be final and conclusive against all parties, provided the same shall not be opened up as a decree in absence in the Court of Session within two years. A party entitled to compear would be entitled within this time to jjresent a Keclaiming Note, if the judgment were that of an Ordinary under tlie Act 20 and 21 Vict., c. 56 ; but otherwise, a petition found- ing on the act, and craving the judgment to be opened, would seem to be the competent course. (See Chap. V.) So anxi- ous, indeed, is the Court to have everybody possessing the remotest interest, or supposing that he possesses such in the field, that parties, whose interest would not be sufficient to give a status in other legal proceedings, are welcome to com- pear and state any relevant objection. Indeed, the intimation on the walls of the Parliament House, and in the Minute- Book, which is without exception ordered by the Court, is a public intimation to all such parties to come forward. Thus an individual ratepayer under a Local Police Act put him- self forward to dispute the actings of the commissioners under it, and was heard as a compearer having interest in Myles, 13th Dec. 1855, 18 D. 205 ; although it was deter- mined in Ewing v. Glasgow Commissioners of Police, lOtli Jan. 1837, 15 S. 389, afi'd. 1 M'L. and R. 847, and in a sulv sequent case of Morrison against the same defenders, 13th June 1837, 15 S. 1128, that such a party had "no sufficient title to complain of resolutions of the Commissioners of 108 Tin: I'AUTIES TO FACTOIUAI. Ari'OlN'TMENTS. Polico authorisinp: u Ltrt>iiii Mjiiinipriation uf the fuiiJs alleged to bo illegal." An (il.jr.tor cinnjK'aring wouKl thus seem to l>e viewed as amicus cnriiv ; and the popular cha- racter, which we have seen extends to the petition for recall of a factor's appuintnient where suspicion against the factor exists, winted as manager of a burgh. Thus, in an application for managers of the burgh of Aberdeen, the Court ex pro- pria mvtu, and although there was no prayer for service at all, appointed it to be served on the whole persons, who at Mieliaelmas 1817 were elected magistrates and councillors, and who were to be superseded by the iiroposed manager ; I'ooks of Sederunt, 11th ^^larch 1S18. Accordingly, the parties who were called as respondents were the magistrates and councillors, whose ap]iointnient bad lieen declared illegal, in Kidd, I 1th March IS.'):', lo 1). K'.T. No service upon any parties wa.s asked in tlie case of Fori)es, 22d Dec. 1838, I IX 351 ; but there the petitioners were tin; majority of the town council, whose powers were called in (jucstion, and tiicy asked their own ,'i|i|Miiiitnient as managers to removo any doubt as to their powers. Tlie ntlior members of tho THE PARTIES TO FACTOIllAL APPOINTMENTS. l09 tuwii couucil compeared in the case, and were conjoined in tlie judicial management ; but it is particularly to be oljser- ved, that in this case the Court directed intimation of the petition to be made to the Lord Advocate, who when it was advised appeared and intimated that, on the part of the Crown, no objection existed to granting its prayer. The Dean of Faculty (the late Lord- Justice-Clerk) objected to any appearance being sustained by the Court as having been made by the Crown, in respect that all interference by the Crown in burgh elections was unconstitutional. Lord Corehouse's remarks embody the views of the Court on this point: — " In disposing of this matter, we thought it right to be informed whether any objection to the application ex- isted on the part of the Crown ; we did not thereby sanction any right of interference by the Crown in matters of elec- tion. The case is in so far peculiar and anomalous that, before a decision is given whether the election of the magistrates is good or bad, we have been called on to appoint managers of the burgh. Before proceeding to do this, we have merely taken the precaution of ascertaining by the appearance of the Lord Advocate that there is non-repug- nantia on the part of the Crown. That is a totally dif- ferent thing from finding that, in a proper matter of elec- tion, the Crown possessed a right of interference." The Interlocutor pronounced was so worded as to avoid recog- nising any right in the Crown, although the intimation of no opposition to the petition was noticed and specially entered as made " at the desire of the Court." We come now to notice who may be parties to applica- tions for the appointment of a judicial factor under Acts of Parliament. It might not be necessary to do more in refer- ence to this branch of our subject than enunciate the gene- ral principle, applicable to all statutory jurisdiction, that the applicant for a factorial appointment must possess the title demanded by statute, as wo cannot hope to overtake a 11(1 rilF. TAIITIKS lo 1 ACTOUIAI, A I'I't M NTM I'.NTS. notice, iur less any analysis, of the many Acts of Parliament, which wo saw in our first cliapter related to such appoint- raenta. But as the decisions of our Courts in reference to tliis matter, thougli few, are very important, we shortly notice tliem. The Companies' Clauses (Scotland) Act, 1845, 8 Vict., c. 17, was passed on 8th May 1845, for the purpose of comprisinp: the pro^^sions usually introduced into the acts autliorising undertakings of a public nature, in order to avoid their repetition in such acts for the future, and to ensure greater uniformity in the provisions themselves ; and in connection with it, there have been some decisions which show the general principles applicable to statutory factories. The 56th and 57th sections of that act relate to the subject of judicial factors. The former of these enacts that, if a mortgagee under a special act be empowered to enforce pay- ment of arrears of interest by applying for a factor, he must wait thirty days after the interest has become payable, and must make a demand therefor in writing before resorting to his remedy of applying for a judicial factor. It has been held that this section lays it down " that a demand in writing must be made thirty days before the petition is pre- sented ; " and the want of this statutory notice is of course fatal to the application for a factor ; liaird v. Caledonian Railway, 13th Nov. 1850, 13 D. 36. In the case of the mortgagee under a special act liavin-- jiower to enforce pay- ment of the principal sum by applying for a factor, he must wait the expiry of six months after it has become payable, and after demand then-of in writing, before presenting his petition. There is no particular form in Mliich this statutory demand in writing requires to bo made. A letter by the petitioner's agents was iield sufficient compliance with the statute in PrimMso (Wisliaw and Coltness Co.) v. Cale- donian Railway, lltii Jan. 1851, 13 D. 464. This power o| applying for a factor is ;t Division have subsetiuently refused to ajipoiut ladies to be judicial olficers ; Frasor, Gth ]\Iarch 1845, 17 Jurist, 291; Hepburn, 17th Feb. 1843, 5 D. G55; Thorbnrn, 2d July 184G, 8 D. 1000. Tlic Second Division appointed a lady in the case of Gumming, 4th Feb. 1848, 20 Jurist 200 ; but tliey have now adopted it as a general rule to refuse to appoint a lady to be tlieir officer, Galloway, 1st Feb. 1855, 17 D. 321. A party out of Scotland will not be apjiointed by the Court, bec^au.sc he is beyond tlieir jurisdiction, Adie, 19tli Dec. 1835, 14 S. 185; Robertson, 3d Dec. 184G, 9 D. 210; and if, aftl all parties agreed, we would have uominated any manager who was acceptable to tliem ; but as they do not, we cannot name an undischarged bank- rupt as judicial factor." Lord Gillies, however, " considered a bankrupt inLligii)le ; " and Lord Craigie "concurred in thinking that u bankru[>t ought not to be appointed by the Court as judicial factor, and that no confidence which parties might privately feci themselves warranted to repose in him could sanction the Court in such an appointment." These latter views even came to be entertaiuetl by the Lord President (Millar, 20th June 1840, 2 D. 1181), and have met with so general accei)tance, that the Court, on the insolvency of a factor, invariably recall his appointment, and nominate anew factor ; Davidson, 8tli July 1830, 8 S. 1027 ; Fraser, 28th Feb. 1849, 11 D. 1028 ; Miller, 17th Nov. 1849, 12 D. Oil, 22 Jurist G. Where a contradictor appears, and an individual is agreed on between them, the Court will ap- point him to be their officer in the general case ; Davidson, 2Gth Jan. 1837, 15 S. 421 ; Hay, Uth IMarch 1837, 15 S. 850 ; M'Intosh, 30th Nov. 1830, 15th F. 155. The Court have naturally felt warranted in giving this preference to the nominee of tlie parties apparently having the chief in- terest in the aj)pointment, the more especially that the factor's finding caution should be a guarantee against detri- ment to the estate through collusion. The cases in which they wt-re called upon to take cognisance of collusion are, with one exception aftur-mentioned, of old date, and there the office was that of tutor or curator at common law. Great cauti(^n has, however, been always exercised in the exclu- sion of jiarties from being officers of Court, who might be .•iUppij.seil to have any inten^st adverse to the jierlormance of their duty, as will afterwards appear from a detail of the cases having reference to such appointments. In Ramsay r. Ilay, lOth Nov. If'.Jl. M. 1 1;245, competing tutors entered into a .'*id>mission rrgarJiiig flu- olljrc, " whith the Lf»rds THE PARTIES TO FACTORIAL ARrOIMTMENTS. 119 found it was not lawful to submit ;" and besides, the arbi- ters had decerned the one party to give to the other some of the pupil's goods, and " thereby the pupils were evidently damnified." The next case in which the Court took steps to prevent collusion in reference to an office of such impor- tance as curatory was Bargany, 14th July 1702, M, 16319, in which they sequestrated the minor's person, or, in other words, ordained him to be transferred to the custody of a neutral party, in order to ensure his freedom in electing cu- rators ; see also Gordon, 11th July 1710, and Bower, 29th July 1750, both M. 8910. An agreement to give a gratuity to a person to undertake a tutory because relations declined it will not be supported ; Scot, 19th Feb. 1736, M. 16341. The condition of freedom from omissions cannot be compe- tently made by minors in favour of the curators they may choose; Watson, 16th July 1773, M. 16369. The single modern case on this point, above alluded to, is Doud, 21st Jan. 1847, 9 D. 511, and there the Court expressed strongly their opinions as to the impossibility of their sanctioning any attempt to make a collusive bargain regarding the office of factor loco tutoris ; see the same case reported as Kennedy, 16th Nov. 1841, 4 D. 12. In further encouragement of the exertions of any party who in this respect is held to be amicus curice, the pursuer of a process of removal of tutors as suspect has been al- lowed the nomination of new tutors, or of a party to be joined in the office with the party whose actings gave rise to the proceedings, where the Court felt at liberty to con- tinue him in office ; M'Brair, 5th July, and M'Brae, 8th July 1667, M. 16278 and 16279. On the same principle, the person, suggested as factor loco tutoris by the party who, if he had been in Scotland, would have been entitled to serve as tutor, was preferred to the nominee of the other relatives who appeared — the mother and her connections ; Sinclair, 19th Dec. 182S, 7 S. 214. In a case where the petitioner 120 THK r.-MMIKS TO FACToUIAI. Al'I'oINTMKXTS. asked Ins own appointiniiit us (.iiiutor boiiia to his lunatic sister, lie was objected to Ity tlu'ir sister's cliiMrcn on per- sonal grounds, and also on the ground that the petitioner re- frained from serving as tutor-at-law. The Court could not tind the personal ohjections sulliciently (pialified, although, if the proposed curator hail any interest whirii was adverse to the well-heing of his ward, they would have considered him quite ineligible. When, however, the party who is en- titled to serve as tutor by implication renounces his right, and applies to the Court for a factor or curator, they incline to regard him or his nominee favourably ; Jackson, 19th June 1835, 13 S. 961 ; Morton, 4th ]\rarcli 1837, 9 Jur. 346 ; Graham, 23d Jan. 1851, 13 D. 951 ; Watt, noticed under date 23d Feb. 1856, 18 U. 652. The Court, however, re- fused to ai)point as factor loco tutor is and as curator bonis the individual who was entitled to obtain himself served as tutor-at-law in the cases of Mortimer, LStli June 1845, 17 Jur. 457, and Cameion, 20lli Nov. 1849, 12 D. 912 ; and if the Court had seen pro})er to have continueil so to limit ap- j>ointments, it is thought that it would have been much more in consonance with legal principle. Hence, in England, as it is the duty of the next friend of an infant to watch the accounts and conduct of a receiver of the infant's estate, the two characters are held incompatible ; Stone v. Wish- art, 2 Mad. 64. Even the son of the next friend will not be jijipoiiited receiver on the same grounds ; Tuylur v. Olilliani, Jac. 527, 529. At the same time, the exi)ense of obtaining a serviec is at present such as to excuse the course adopted, the more so that, if the jmrty who could serve obtains a ju- dicial appointment, he must act gratuitously in the latter as well as in the former olfiee ; Jackson, 7th and 11th Dec. 1821, 1 S. I'Jl ; Kobert.s(.n, 14th Jan. 1S:;(), S S. 435; Jack- s«m, l!>th June 1S35. 13 S. 961. Tin condition of acting gratuitously will, ifllK failoi have accepted and acted, not be \]i\\uiHQA < J- j>"sf fill fii : Marilfinald. Sfh July 1S54, 16 T\ THE PARTIES TO FACTORIAL APPOINTMENTS. 121 1023. Where tlie minor himself asked tlic appointment of a party as his curator honis^ and the Court thought that there lay some objection to his nominee on the score of adverse interest, they did not refuse to appoint him, but conjoined a party witli him in the curatory, contrary to general practice ; M'Neill, 8th March 1849, 11 D. 1029, 21 Jur. 360. A factor loco ahsentis being sought, the nominee of the brother of the absentee was preferred to that of his uncle ; Brown, lltli June 1852, 14 D. 856. In that case it was remarked from the Bench that an absent party, a luna- tic, or pupil, has no further interest in the individual to be appointed the officer of Court than that his estate should be well managed ; and that, wherever it could be made out that there is a competition for the office, the Court will not appoint any of the competitors, a principle fully sanctioned by the old cases in regard to the common law offices above quoted, and also enunciated in the late case of Hill, 31st Jan. 1854, 16 D. 425. AVhere a party, to whom on account of alleged incapacity a curator bonis was sought, appears and while denying mental incapacity states that, in respect of corporeal infirmity, he is willing to have a curator, but he will not consent to the appointment of the petitioner's nominee, the Court will appoint one of certain parties named by him, or take other means of getting a neutral party as factor ; Dewar, 21st Jan. 1834, 12 S. 315 ; Allan, 16th July 1852, 24 Jur. 635. In the curious case of Howden, 9th March 1833, US. 561, a petition was presented for their own appointment as curators bonis to a party insane by the individuals to whom, before his incapacity, he had written a letter requesting them, or either of them, to take the management of his affairs and his person in the event which happened. To this petition the lunatic's youngest daughter and his brothers and sisters consented ; but it was opposed l)y his wife and b}' two sons and one daughter, mi the ground tliat the nearest agnate had right I'J'J THE PARTIES TO FACTORIAL APPOINTMENTS. to tliL' tutury iiotwitlistaiuling the k'tter ; Imt tlu'V sug- gested that one of the sous, or a neutral p^irty. shmiM be appointed curator by the Court. The Cuurt thought that tlie proposed appointment of a neutral person was liable to the objection tliat it might })rejudgc the question as to the effect due to the lunatic's nomination, from the consideration of which the Court wished, in respect of its importance, to be relieved by the parties, and to enable them to eiVect this, an interim appointment of the petitioners was made. AVhen the petition was afterwards moved, the peti- tioners acceded to a suggestion of the respondents, that a party named by them should be conjoined with the peti- tioners, and the Court accordingly appointed the petitioners and the respondents' nominee to be curators to the lunatic. Trustees appointed by a father to a fatuous son applied for their own appointment as curators ho7n's, and the prayer of the petition was granted in Kirk, 21st IMay 1836, 14 S. 814. It may be here remarked that, although it is not abso- lutely incompetent for parties to petition for their own ap- pointment, still it has been discouraged, and it is only in special circumstances that such a course should be adopted. An observation to this effect was made by the Court in the case of Carfrae, 11th July 1830, 14 F. 1059, although, as no objection was made, and as caution would be found, the prayer of the petition was granted. An appointment of the petitioner as curator bonis to a niiiinr was made in Bower, 2yth July 1750, M. 8010 ; and the petitioner, who was lnother to the lunatic, was appointed, inresjject that though application was made to the other relatives they did not appear to object, in Graham, 23d Jan. 1851, 13 1). 051 ; see also Allan, 12th Feb. 1852, 14 1). ISO. The objection which arises to a party on the score of an interest adverse to that of the ward has been already noticed a.s occurring along with other points in «oine of the cases f|U«>ted. It erate.s with cipial force whether it be the THE PARTIES TO FACTORIAL APPOINTMENTS. 123 petitioner who has the adverse interest, or the individual suggested, as in the former case the taint is transmitted to the nominee, and attaches to him the oLjectionable suspicion, to which the petitioner is liable, as strongly as in the other case. In the case of Armit, 25th May 1844, 6 D. 1088, the inte- rest to save something out of a lunatic's income, by placing him in an unsuitable establishment or otherwise, was held to disqualify the nominee of a relative. The same objec- tion arose afterwards in circumstances in which it may be supposed more naturally to present itself, viz., where it was proposed that the Court should nominate as curator the party with whom the lunatic was at the time boarded, and another party w^as appointed to the office ; Montgomery, 7th March 1855, 17 D. 623. Where it appeared from the medical certificates produced that the lunatic had been sadly neglected previously, the Court did not feel themselves at liberty to appoint the party suggested as curator by the relatives de piano, but remitted to the Sheriff of the county where the party resided to enquire and report on his quali- fications for the office ; Thomson, 8th July 1846, 8 D. 1073. The Court, ou the same principle, refused to appoint as curator to a single woman of weak mind the husband of her sister, -with whom she lived in family, as such an ap- pointment would place her too absolutely under the control of the sister's husband ; Walker, 16 Nov. 1849, 12 D. 912, 22 Jurist 2. In a case where the appointment in one peti- tion of the same party as factor on a lapsed trust, and as curator bojiis to a lunatic beneficiary was asked. Lord Kin- loch Ordinary refused to make the double appointment craved, but on a restriction of the prayer the party suggested was named factor on the trust ; Philip, 23d Nov. 1858 (not re- ported). The conflict of interest which might arise ought at least to have led to the nomination of different parties for the different offices ; Wilson, 22d Jan. 1857, 19 D. 286. Disqualification by such adverse interest extends to the case 1"J4 Tin: I'AKTIF.S TO FACTOIUAI, Ari'olNTM HNTS. of jutliciiil appointments where tlic incapacity nf the ^vard arisesfrom pnpinarity,an(l accordingly a stepfather will ho re- fused as factor loco tuforis; Forbes, 4th Feb. 1882, 10 S. 289 ; Ikiclianan, 8d ]\Iarch 1854, IG D. 717. In the case of Rae- burn/iath Nov. 1851, 14 D. 310, a stepmother's nominee was rejected. A maternal granduncle was appointed factor loco tutoris in preference to the paternal grandfather of the pupils, because there were alleged claims due to their estate by the latter, and their estate consisted principally of a lease of a farm which came through their mother, the landlord whereof api>roved of the appointment of the granduncle, in TlKmison, 9th ]\Iarch 1839, 14 F. 79G. Official position is in the general case a guarantee ag.ainst the possession of any interest adverse to the pupil or incapa- ble ; and although the nature of their duties and their posi- tion as servants of the Crown are incompatible with their holding appointments as factors and curators for any length of time (Esson, 5th June 1857, not reported), the Court sometimes nominate parties officially connected with the locality where the property is situated, or the ward resides ad interim. The Sheriff-clerk of the county was so nominated in Patrick, 18th July 1848,20 Jurist 506 ; Wilson, 30th Nov. 1849, 12 1). 248 ; Fraser. 15th Dec. 1855, 18 R 2G4 ; and the Sherifl-clerk ])(i»nte was the party appointed in lirown, 22d Dec. 1848, 1 1 D. 1027. The propriety of mak- ing such appointments very exceptional further appears from the practice which obtains in regard to receivers in Eng- land. The collector of taxes for a county was held incapa- bh- of being appointed, because, having given security to the Crnwii in his situation, in the event of his becoming in- debted to the Crown and to the estate, the former would preferably sweep away alibis pro])erty : Att«>rnry-(}eneral r. Day, 2 ]\fad. 254. On the same prim iplc, a peer cannot be a receiver, JK'cause he could lint be cominitl' d ; Attomey- (leneral i'. Ooo. 2 V and P.. 2(>H. THE PARTIES TO FACTOUIAL APPOINTMENTS. 125 One very proper exception to tlie presumed qualification of official men is recognised in the case of ministers of the Church of Scotland, although his profession is no disquali- fication to a minister's serving as tutor-at-law to any pupil to v^hom he is in the position of the nearest qualified agnate ; Forester, 12th March 1529, M. 1G217. The Court naturally conclude that the duties and character of the clerical oflice may prove incompatible with the adequate discharge of the business of the official appointment, and this ground of objection the Court will propose ex proprio motu ; and it applies to all kinds of factorial appointments; Thomson, 13th Nov. 1829, 8 S. 12 ; Stodart, 3d Feb. 1830, 4 Deasand And. 243 ; Whitson, 31st Jan. 1832, 10 S. 268 ; Bisset, 15th Nov. 1836, 15 S. 4 ; Hall, 18th Feb. 1830, 8 S. 553. An exception occurred in the case of Kirk, 21st May 1836, 14 S. 814, where one of several parties appointed curators honis to a party incapax was a minister of the Church of Scotland, but he was one of the trustees whom the lunatic's father had named for the management of some property left for his support, and they here petitioned to be vested with the curatory in respect of their being trustees. In the case of Campbell, 13th July 1849, 12 D. 913, the Second Division appointed, on the application of the bene- ficiaries under a private trust, a clergyman of the Church to be factor on the trust-estate. To ministers connected with a body of dissenters no objection on account of official position is held to apply, Miller, 18th Feb. 1830, 8 S. 553 ; Fletcher, 15th Nov. 1850, 13 D. 951 ; Henderson, 21st Nov. 1850, 13 D. 951 ; Forbes, 2d Dec. 1853, 16 D. 109 ; and an unbeneficed clergyman of the Church will not be objected to. Smith, 3d Dec. 1850, 13 D. 951. Soldiers seem to have been regarded even more suspici- ously than beneficed clergymen, for we find that the fact of a tutor-nominate being a soldier was one of several conside- rations for asking him to find caution in Douglas, 11th Jan. 12*'t THK I'AKTIKS To FACTOIUAI, Al'rolNTMKN'l'S. iG'j3, y[. IGiU i. The Koiiiaii law seems to have suggested to the Court the propriety of tlic (leiiiaii«l in tliat case. In the present day, and clncfly on account of their preference of men of husiness hahits, the Court would, it is thought, hesitate to appoint a soldier to he their olliccr. In consequence of what are termed " the many inconve- niences arising to the leidges," writers and other dependents U]ion the Court of Session were declared "wholly incapahle of any such trust or office," as was implied in their being nominated factors to uplift the rents of " bankrupt ami in- cumbered estates," by an Act of Sederunt dated 2Rd Nov. 1710, and by their decision in the case of Home, Gth July 1716, M. 40G8, the Court held that the professional parties above mentioned were disqualified from holding any factorial appointment whatever. Advocates are not, by this Act of Sederunt, excluded from being factors ; Buccleugh, 10th Jan. 1758, U. 7455 ; Cowan, 13th June 1845, 7 D. 872, aff. 1 7tli :\rarch 1848, 6 Bell's Ap. 222. The exclusion operated by these means has however been in desuetude for more than fifty years (a Writer to the Signet was appointed in Home, 7th March 1703, M. 1G382); and to professional men nrtt otherwise disqualified there is now no objection. At the same time, in order to obviate any objection arising from there being any combination of inconsistent charac- ters, the natural tendency of which might be to encourage litigation, professional men have no right to make any charges against the estates on which they arc aiii)ointed ; Robertson v. Morison, 2Gth April 1849, G Bell's Appeal Cases 422; Flowerdew, 22d Dec. 1854, 17 D. 2G3 ; Lord Gray, Mackenzie, and Douglas, 12th Nov. 185G, i:i 0. i ; Wellwood's Trs., 17th Dec. 185G, 10 D. 187. The disin- clination of legal practitioners to undertake the duties of factorial n])pointments has been of late on the increase, and for many years accountants have been the jiartios most generally .suggested to thr ronrt f<»r these appointments, a THE I'AUTIES TO FACTORIAL APPOINTMENTS. 127 preference which the Court have sanctioned for the reasons expressed in the before-mentioned case of Dixon. In the case of Anderson, 22d Nov. 1854, 17 D. 97, a farmer was suggested for the appointment of factor loco tutoris, and the Court, on the ground that all factors ouglit to be parties accustomed to business, suggested that another party should be nominated ; but when the case was again called, the petitioner was able to satisfy the Court of the prudence and business habits of his nominee, and he was accordingly ap- pointed to be factor. It is evident, however, that where the only property to be managed is a farm, or where agricultural knowledge is of value, it would be of advantage to secure an intelligent farmer for the appointment. Where the estate on which the appointment of a factor was sought was situ- ated at a distance from Edinburgh, and the appointment of an accountant in Edinburgh would have caused great ex- pense, a party resident in the county where the lands lay was appointed ; M'Culloch, 11th Dec. 1851, 14 D. 311. Disqualification, arising from their acting or having acted as the advisers of parties having interests adverse to those of the persons interested in the property to be put under judicial management, can easily attach to professional men. Thus where a petitioner asked for the appointment of a party as factor, who was a partner of the firm of law-agents whom she employed, the objection hence arising was given effect to, as it was held he could not be " an impartial per- son;" M'Intosh, 30th Nov. 1839, 15 F. 155. The First Division, however, did appoint the petitioners agent to be factor loco tutoris in Hepburn, 17th Feb. 1843, 5 D. 655. This case would not now be held a precedent to be followed, and with the view of preventing the appointment of parties, who have been connected in any way as agents with the matters or parties interested, the Court suggested that it be stated in the petition for the appointment of factors and curators, whether the party nominated for appointment, if 128 Till'. I'AUTIKS TO FACTOKIAI. Al'PolNTMKNTS. lie be u luw-apjfiit, has over uctetl as agunt for tlie pupil or lunatic ; Mathew, 5tli Dec. 1851, 14 D. 312. Disqualification may sometimes arise from a party's act- ing in the matters of an estate in the character of trustee. This ground of objection was sustained where the factory was sought over an eiitailetl estate regarding wliiili there was the prospect of various questions arising, and it was the next heir who was suggested as factor. lie had been the trustee for the creditors of a previous heir of entail, and although they supported his noinination, he was re- jected; M'Culloch, 11th Dec. 1851, 14 D. 311. On the other hand, where a partner of a dissolved firm had, on his apprehension on a charge of forgery, granted a trust-assig- nation and factory in favour of a party, in order tliat he might collect the debts and wind-up the concern, and it was suggested that the judicial oflicer whom the Court should appoint to supersede him should be a third party, the Court nominated the trust-assignee to be judicial factor ; Marshall, 5th June 1841, 3 D. 989, IG F. 1038. But a party who has declined to accept of a trust will not be appointed factor to execute the purposes of it, although suggested by the bene- ficiaries under the deed fur the ofiice ; Pennycook, 20th Dec. 1851, 14 D. 311. Where a party was factor hro tufon's to pui>ils who had right to a. 2^^'^ indiuiso share of a proi)crty, he was ajjpointed to l>e factor loco fnforis to some other puj)ils to whom an- other share of the same property belonged ; Martin, 13th Feb. 1852, 14 D. 701. The same party, who managed as factor the mother's estate, was appointed factor on the father's, the children being beneficiaries under both, and there being no such conflirt of interest as would have justi- fied the Court in entailing upon the parties the expense of a separate management; Scott or Clark, 17th dune 1856, 18 I). Kill, On fills ])rineii)le, the same party, who is factor lorotuioriH to some of the rhildren. will be, whore otherwise THE PARTIES TO FACTORIAL APPOINTMENTS. 129 thouglit competent and proper, appointed curator bonis to other members of the same family, Carter, 21st Jan. 1857, 19 D. 286 ; but where the children may have conflicting interests they should have separate guardians, Wilson, 22d Jan. 1857, 19 D. 286. The great object which the Court always have in view being the impartial management of the estate for the behoof of all concerned, they reserve to themselves the power of refusing to act upon the suggestion of the petitioner, or any other party interested, as regards the person to be appointed. In such circumstances they most generally remit to the Sheriff or Sheriff-substitute of the county, where the estate lies, or the minor or lunatic resides, to suggest a party to be appointed ; Urquhart v. Scott, 10th March 1824, 2 S. 652 ; Gordon, 30th June 1832, 10 S. 742 ; Dewar, 21st June 1834, 12 S. 315 ; Cleugh, 10th Feb. 1837, 9 Jur. 291 ; Menteath, 30th June 1840, 2 D. 1234 ; Thomson, 8th July 1846, 8 D. 1037 ; Grant, 2d Dec. 1847, 10 D. 194 ; Brown, 22d Dec. 1848, 11 D. 1027 ; Macintosh, 9th March 1849, 11 D. 1029 ; Cochrane, 21st Nov. 1849, 12 D. 147, 22 Jurist 11. In the case of Stewart v. Campbell, 12th Feb. 1830, 8 S. 512, the Court appointed the party suggested by the clerk at the table ; and in the later case of Lord Hyndford, 5th Dec. 1769, M. 14347, a remit to nominate was made to one of the Lords of Council and Session. One of the advantages, which the practice of the Second Division of the Court in regard to the appointment of a curator ad litem to a minor peti- tioner has, is that they have the benefit of his opinion as to the fitness of the party proposed in the petition for oflBce ; Carter, 21st Jan. 1857, 19 D. 286. As remarked in the outset of this chapter, the practice of the First Division is in this matter different, and rather inconsistent as regards the nomination of a curator ad litem where the petitioner labours under legal capacity other than minority ; see Al- cock, 3d June 1840, 2 D. 1001, 15 F. 1071 ; and again, 2d I 130 TllK I'AUTIES TO FACTOKIAL Ari'OlNT.MKNTS. June 1855, 17 D. 785; and Davidsun, 18tli June 1857, 19 D. 8G2. In every case where a curator ad lUcin is appointed, the Court have the advantage of an expressed or implied opinion as to the candidate proi>oscd. The creditors of the hurgh of Lochmaben, having in con- sequence of the insolvency of the corporation presented a petition for sequestration of the estates of the burgh, also prayed tlie Court " to appoint the creditors to meet, and to recommend a fit person to be judicial factor," which was granted, and after they had so met and named a party, the Court appointed liim judicial factor ; Beck, 5tli March 1824 (not reported, but noticed in Beck, 30th June 1836, 14 S. 1056). The pjrinciples which guide the Court in appointing parties to be factors apply to a great extent to tlie appointment of managers of burghs, as will be seen from a reference to the various cases in which they were called upon to select parties for that office. In such cases, a previous acquaint- ance with municipal affairs is sought as a guarantee, not only of fitness for the ofiice, but also of confidence on the part of those interested in the management of the affairs of th^ burghs. A party, lately one of the bailies of Edinburgh, was appointed in Denham, 1st July 1746, 1^1, 7435. Four parties, bailies of Edinburgh for tlic year preceding the dis- franchisement, or any uf them, and in case of their absence or refusal, three persons, bailies for the preceding year, or any of them, were appointed on the petition of the city-clerks of Edinburgh, 3d July 1746, M. 7436 ; and tlic four late bailies were nominated by the Court in Braidwood, 18th July 1746 M. 7436. The appointment to act as dean of guild aud his council till a magistracy was appointed was in favour of the party who was the last dean, the former dean, and the parties who were dean of guild and council before the last term of Michaelmas, " to exercise the power and oflBce of dean of guild," in tlic petition of tlie town-clerks of Ediri- THE TARTIES TO FACTORIAL APPOINTMENTS. 131 burgh, 31st July 1746, M. 7437. The two bailies of Inver- keithing, previous to Michaelmas 1760, were appointed to execute the powers belonging to tliese offices " until bailies be regularly established" in Walker, 25th July 1761, M. 7447. When the burgh of Montrose became disfranchised in 1817, the Court appointed those of the petitioners who had been elected provost, bailies, and dean of guild at the election, which had been found to be illegal, void, and null, to be bailies " until the magistracy of the burgh should be restored," and appointed the conjunct town-clerks of the burgh to take charge in the meantime of the funds or patrimonial interest of the burgh ; see Books of Sederunt under date 11th June 1817. The parties appointed as managers of the affairs of the burgh of Aberdeen ad interim^ on 11th March and on 19th May 1818, for two years, unless their appointment should before that time be recalled or altered by the Court, or un- " less the corporation should be restored to a legal magistracy by poll election or otherwise, consisted of individuals who had been elected magistrates and councillors on 24th Sept. 1817, of certain of the petitioning burgesses, and of two parties in Aberdeen who appear to have been nominated by the Court, ex proprio motu. The appointments here were made to certain of these parties, and failing their acceptance, then to others of their number. The proceed- ings are entered in the Books of Sederunt under date 11th March 1818. The parties appointed managers of Pitten- weem on 19th June 1824, were all constituent metnbers of the illegally elected magistracy and council, but two of them were of the number who complained of the last elec- tion, and succeeded in their effort to disfranchise the burgh, and the appointment was in favour of them and the accep- tors and survivors of them — a majority being always a quorum — to endure for a year, unless there was a recall or alteration by the Court, or the representative body of the I 2 II'.'J THK I'AUTIES TO FACTuHlAI. Ari'OlNTMKNTS. corporation was restored. In this j^etition for managers there occurs a passage, whicli wi- qnote as a ]»rotty authori- tative statement of the considerations to \\hi( li tlie Court lend weight in their selection of managers. The petition was drawn hy the late Lord Justi(;e-Clerk Hope while at the bar, and the passage referred to is as follows : — " The peti- tioners understand that in iipiiointing interim managers your Lordshijis usually nominate the ofHce-bearers of the year ]>receding the election that has been set aside. If this rule should be adopted, the petitioners would humbly sug- gest tliat tlie town-treasurer should be left out of the nomi- nation. They could assign many reasons for this, but as the task is a disagreeable one, they shall content themselves with mentioning that he is at this moment an undischarged bankrupt, and that the confused ami unintelligible manner in which he kept his accounts rendered it necessary for the council some years ago to interfere and apjioint a committee, who, after much labour and trouble, made up a rental of the town's rovonuf and a list of arrears, which were put into his hands with instructions in what manner he was to make out and keep his accounts in future ; but either from inca- pacity or disinclination he adhered to the old practice, and it was found necessary to a]»point a factor or chamberlain who should find security for his intromissions. Mr James Simpson, town-clerk, was accordingly appointed, and, until violently and illegally interrupted and dismissed by the treasurer and his ]»iirty. ^Ir Simpson gave universal satisfac- tion, recovered several liundred pounds of old arrears, and put the town's affairs and revenue, from a state of utter con- fusion and derangement, into such clear and satisfactory order, as has secured to liim .ind the ]»etitioners and tlieir friends, by wIiohc cfTorts and hibours this favourable change had lieen accomplislied, the irr.'if itiide nnd njiprobnfion of the inhabitants." In June \S2i} a mnjorify of the ji,'irtit .luiic 1851 was continiutl l.y tin- Court. The above cases relate to appoiiitinents under tlie Com- panies Chiuses Act (S Vict., c. 17). Anotlicr class of statu- tory factories arc those under the Bankrupt Act (19 and 20 Vict.,c. 79,§1G4). Intlio first case wliirh liai)pened under it, Macfarlane, 0th March 1857, 19 D. G56, the Lord President remarked, " The application asks us to appoint some one to be judicial factor on the intestate estate. Narty suggested by the petitioning creditor. I have no doubt as to the rcspoctability of this }>erson ; but the course we intend to adojit in future is, that we shall our- selves make inquiry as to the matter, without any respect to the nominee of the petitioners." To these views effert has been given in the Act of Sede- runt of 25th Nov. 1857, which has reference to the above- menticmed clauses of the Bankrupt Act, and enacts (§ 1) " that every i)etition presented to the Court under § 164 of said statute for the appointment of a judicial factor on the estates of i)erson8 deceased shall be in the form, and as nearly as may be in the terms, set forth in tlu; schedule hereto annexed," while that schedule makes no provision for any suggt'stitm or roc<»mmendati(»n of finy party as factor by the petitioner. In this respect, therrfoic, petitions for a factor under tiic liankrupt Act differ from all other petitions, in which the suggestion of tln^ petitioners as to a party for the office of factor must be embodied. (See Cha]i. \ . ) \V<' ronie, in cou'lusioii, to nnti.c how fhr ('..nit deal with fjue.stions f»r ex|nnses as between the partiis to an ap- THE PARTIKS TO FACTORIAL APPOINTMENTS. 137 plication for a judicial officer. In speaking of tlie rights and positions of parties compearing in such applications, we took occasion to state as the general rule that to these parties, wlien they were successful, expenses were allowed, whereas expenses would undoubtedly be given against them if the ob- jects they had in view were not such as could be countenanced, or if they were unsuccessful in their attempt to maintain the position in which they asked the Court to listen to them ; Myles, 13th Dec. 1855, 18 D. 205 ; but see Eobertson, 17th July 1841, 3 D. 12G4. - The general case in which a question of expenses requires to be decided is, where there has been competition for the office, or where the parties could not agree upon a person to be suggested therefor ; but where parties unsuccessfully re- sist the appointment of a factor, the question of expenses may be raised by the successful party moving for them, and where this is done, the expenses caused by the opposition will be awarded ; Gordon, 28th June 1839, 1 D. 1135. On the other hand, the parties opposing a factorial appointment are entitled to expenses if they succeed ; Young v. Collins, 14th March 1853, 1 Macqueen 385. Where two competi- tors were rejected, and a party suggested by the Sheriff was appointed, the expenses of the unsuccessful competition were refused to both ; Cleugh, 16th Feb. 1837, 9 Jurist 291. In the case of Cochrane, 21st Nov. 1849, 12 D. 147, 22 Jurist 11, the Sheriff suggested a different person from the peti- tioner's nominee, and in consequence, the petitioner got de- cree for the mere expense of his petition, and the respon- dents were allowed their expenses out of the estate. The expenses of both parties to the application were allowed against the estate in Stewart, 12th Feb. 1830, 8 S. 512 ; Hay, 11th Match 1837, 15 S. 850; Eaeburn, 25th Nov. 1851, 14 D. 310 ; Smith, 24th Jan. 1852, 24 Jur. 172. In the case of Brown, Uth June 1852, 14 D. 856, an unsuc- co.^sfnl rompctitor for the office of factor was brought for- 138 Tilt; rAllTlKS TD FACTOIUAI, Ari'OlNTMKNTS. wiird ill opposition to tlic pctitioucr's iioiuiut'O, and the peti- tioner alone got expenses, as the otlier party's expenses pro- duced no benefit to the estate ; see also Morton, 4tli March 1837, 9 Jurist 34G. The same principle was aflirinod in Hill, 31st Jan. 1854, IG D. 425, wliere two petitions for a curator were presented on the same day, l>ut as the expense of both was not warranted, and as one petition was correct, while the other required amendment, the expenses of the former application were sustained, as under it tlie nomina- tion was made. In none of the reported cases, where appointments of man- agers of burghs either have been made after answers were lodged by parties as respondents, or have been refused by the Court, were expenses granted in favour t)f any party. In Greig, 21st Jan. 1842, 4 D. 422, the report concludes — " no motion was made for expenses, but it was understood that application for the expenses of tlie proceedings would be made to the managers." There were there opposing peti- tions, but the nominees of neither party had been appointed. It may have weighed with the Court in such cases, that the appearance of the })arties resulted from an anxiety that the public interest should not suffer from civic interregna ; and that therefore considerations of public policy should make the expenses of proceedings in such cases an exception to the rule, which we have seen obtains in reference to the liability of compearers and respondents in petitions for other common law appointments. At the same time, where the Court thought there were circumstances to justify a petition (or removal and complaint of the conduct of tlie managers by certain of the burgesses, they got expenses against the managers personally ; (Jreig, 11th Fob. 1842, 4 D. 002. Where the Court have .seen fit to recall the management, the officer's exitenscs are generally allowcil, although, if such a case could be conceived, where the officer strenuously and unsuccessfully opposed, tho Court wouM rloubtloss disallow THE PARTIES TO FACTORIAL APPOINTMENTS. 139 the expenses of such proceedings. Where the petitioners for what was virtually a recall of the management were un- successful in tlieir application, they were found liable in expenses to the officer in Dixon, 20th Dec. 1833, 12 S. 248, and this case would seem to sanction the Court's granting the expenses of a successful application in favour of the applicant. On the other hand, the Court have as yet successfully avoid- ed determining the question, whether, where a mere recall of the factor's appointment is sought, the expenses of such an application should be borne by the estate. On the analogy of the assumption of trustees, there are strong considerations in favour of an award of expenses ; but the fact that the factors might resign twice a-year if they pleased would tend to show the inexpediency of putting an estate to the ex- penses of a proceeding rendered necessary, it might be, by considerations of advantage on the part of the officer, and which, as he gets a commission, he is quite in a position to defray; accordingly, in the case of M'Ewan, 27th June 1857, 19 D. 936, the petitioner offered to pay expenses. Were the officer undertaking the duty gratuitously, the Court would most certainly set their face against such a disinte- rested individual's being left out of pocket ; such were the considerations alluded to as likely to influence the deter- mination of this question in the case of Gourlay, 10 Dec. 1858 (not reported), where the Court escaped its settle- ment by discovering that the factor had, after the balance on his accounts was ascertained, paid it all over, and hence that that part of the prayer of his petition as to payment of tlie balance under deduction of his expenses did not now require judicial cognisance ; they therefore merely approved of his actings in the factory, and exonered him. Where the factory is one under the Pupils Protection Act, and recall of the appointment has taken place in consequence of the officer's misconduct or failure in liis duties, payment of ex- 14(1 TH1-: I'AliTlKS TO KACTOIUAI, AI'l'UlNTMKNTS. pciist'S is oiie ul" tliu tliiii;;s to bu iiupoi^L'J by the Cuuit us a peuiilty in respect thereof by the Gth section of tlie act. It is nc»t to be doubted that, as re,t;iirils other factors whose appointnient was recalled on siuiilar grounds, the Court would lieceru against them for the expenses which their misconduct or failure bad thus caused to estates. We have previously noticed the questions of expenses in connection with applications for special powers while treat- ing of the parties to these proceedings. Questions of expenses, when they arise under applications in virtue of an act of Parliament, must, if there be any en- actments regarding them, be dealt with strictly in terms thereof. In the general case, it is believed that the disposal of matters of expenses is not made the subject of express enactment ; and then, it is held tt)fall witliiu that necessary exercise of jurisdiction which exists at cdninion law, and is held to be implied by the fact of a jurisdiction being con- ferred ; Ersk. i. 2, 8. " By this rule a Judge may determine incidentally questions which fall nnt under his original cog- nisance, where, without that power, he could not pronounce a detinitive judgment in the action which is properly insisted in before him." Thus where a right is conferred ou certain official parties to originate statutory proceedings, tlio Judge before whom they have to be instituted has an imjdied right to dispose of the question of title, Erskine v. Kerr, ir)th Dec. 1857, 20 D. 277, and also of an objection to his jurisdiction. On this principle the (,'ourt (»f Session have, in applica- tions for factors under the Companies Clauses Act, held themselves competent to dispose of questions (jf expenses. It would seem that, although the pei'uliar jdiraseology of a rluusc in the net, which will hereafter be noticed, may be held to render their powers in this respect more doubtful than in oth' r cases, tin ('uurt's atlinlinii lias never btcii drawn to the tlanse ajlnijeil to as n-gards the point of cx- THE PARTIES TO FACTOIUAL APPOINTMENTS. 141 l)enses ; in fact, tlieir competency to deal with expenses lias never as yet been subjected to doubt. Where the application was refused as incompetent, ex- penses were given to tlie respondents ; Glasgow, Garnkirk, and Coatbridge Co. v. Caledonian Eailway Co., 28th May 1850, 12 D. 944 ; but on the other hand, the successful peti- tioners got no expenses as against the respondents in a case between the same parties, 10th June 1850, 12 D. 989. The p>etitioners obtained their expenses, subject to modification, against the respondents in Wish aw and Coltness Co. v. Caledonian Railway Co., 14th Jan. 1851, 13 D. 464. There was in that case a compearer who was also unsuccessful in his opposition to the appointment of a factor, but he is not specially mentioned in the interlocutor awarding expenses. The respondents were again mulcted in expenses, but only " so far as arising from their opposition," in Primrose v. Caledonian Railway Co., 21st June 1851, 13 D. 1214. Where the petition was refused, the respondents were found entitled to their expenses in Baird v. Caledonian Railway Co., 28th Feb. 1851, 13 D. 795. Here the question was, whether the circumstances warranted the Court's interfer- ence as prayed for ; and these have been already noticed at some length ; supra, p. 111. The 57th section of the Companies Clauses Act (8 Vict., 0. 17) is the one to which we have referred, as being in its phraseology somewhat opposed to the exercise by the Court of any jurisdiction as to the expenses of such applications at common law, and not under the statute. It is in these terms, " Every application for a judicial factor in the cases aforesaid shall be made to the Court of Session, and on any such application so made, and after hearing the parties, it shall be lawful for the said Court, by order in writing, to appoint some person to receive the whole or a competent part of the tolls, or sums liable to the payment of such in- terest, or such principal and interest, as the case may be. 142 THE PARTIES TO KACTOIUAI, All'OlNTM KNTS. until such iuterest, or until such principal uinl iuterest, as the (^ase may be, together toith all costs, including the charges of receiving the tolls or sums aforesaid, be fully paid ; and upon such aj)pointmcnt being made, all such tolls and sums of money as aforesaid shall be paid to aiul received by the person so to be appointed ; and the money so to be received shall be so much money received by, or to the use of, the party to whom such interest, or such principal and interest, as the case may be, shall be then duo, and on whose behalf such Judicial factor shall have been appointed ; an d after such interest and costs, or such principal, interest, and costs, have been so received, the power of such judicial factor shall cease, and he shall be bound to account to the company for his intromissions, or the sums received by him, and to pay over to their treasurer any balance that may be in his hands." The first remark that occurs is, that this clause, in so far as it confers any statutory jurisdiction as to expenses, does so only in the case where a factor is appointed, and not where an application is refused, for the factorial appointment is to continue until the interest, or principal and interest, " to- gether with all costs," be fully paid. These costs are next declared to be exclusive of " the charges of receiving the tolls or sums aforesaid," and hence the term must embrace legal expenses. A distinction is further drawn between the parties to the application who are entitled to be heard in it, and the party to whom the debt is due, and on whose behalf " such judicial factor shall have been appointed," so that the par- ties to the application, and in regard to whom the enactment as regards costs must indefinitely apply, for all of thorn have incurred legal expense.-^, and it relates to " all costs," are all dealt with in this matter on the same footing ; for while they are to get all tlieir costs, the party to whom tlie com- pany-debt is due, and who has obtained the factor, gets in addition to his share of the costs the payment of that debt. But wero this rrmstruotion liold too latitudinarian, the re- THE PARTIES TO FACTORIAL APPOINTMENTS. 143 stricted significance which " all costs " must have, if applied only to the expenses of the petitioning creditor prior to any charges of receiving the tolls being incurred, throws these expenses on the factorial funds, and not on the parties who have appeared in Court. If so, can the Court award expen- ses to the petitioner against respondents or compearers to any extent? At the same time, the benefits attending the exercise of the Court's jurisdiction in awarding expenses against those temere litigantes are such as to make one hesitate to say that the Court are by force of the statutory words excluded from exercising their common law powers in this respect. Of the three cases above-mentioned where a factor was ai)pointed, one coincides with the view that the petitioner should not get any expenses awarded to him ; while the other two show an inclination, on the Court's part, to exercise a right to judge whether or not the respon- dents must pay to the petitioner the whole or only a part of his expenses. In the first of these two cases expenses were allowed under modification, and in the second only " so far as arising from their (the respondents') opposition." As regards statutory as well as all other appointments, it is undoubted that, so far as not allowed against the re- spondents, the petitioner is entitled to his expenses out of the factorial funds. But this point will be considered in our remarks as to the powers and duties of factors in next chapter. 144 CUAPTEK 111. POWERS, DUTIES, AND I.IAIUMTIES OF FACTORS, &C. At common law a judicial guarJian ul' any kind, ai)pointed ■where parties are incapable from nonage or mental inability to take due care of their persons or property, is not as such vested with the dominium of tlie ward's estate, and he does not act as owner thereof. Ilis duty is simply to protect the property of his ward, and to manage it for the benefit of the proprietor and all having interest, and in the discharge thereof he acts as the representative and for and on behalf of his ward, the owner of the estate. The maxim qui facit per alinm facit per se applies, however, to such cases ; and although the authority of such a guardian is derived from a source different from that of a mandatory, and he is not vested with the real right or ownership of the estate he has to manage, he exercises on behalf of his ward the powers of ownership belonging tf> him, so far as wilhiii tin- .luthority conferred by the Court, and called usual or commati law prnvcrs, or such as are called and known as extraordinary or special poioera. Factors locotutoria are such guardians in the fullest sense, l)Ut curat<»rs bonis are ho to a more limited extent. Thus, as regards a curator bonis to a lunatic or other incuijable, the appointment does not necessarily supersede the indi- vidual's fiijiacity ill point of law if he should choose to act, USUAL OR COMMON LAW DUTIES, POWERS, &f. 145 and his sanity or capacity should ])e afterwards proved ; Spence, 13th Dec. 1834, 13 S. 191) ; Maconochie, 3d Feb. 1857, 19 D. 366. But under this limitation curators honis (except to a party capax, e.g., a minor) are judicial guardians equally with factors loco fuioris, and act as the representatives and for and on behalf of their wards. On the otlicr hand, and although the dominium of the propert}^ under curatory is in the person of their ward, curators bonis to a party capax cannot so act, but occupy a position analogous to the com- mon law curators of a minor, their powers being nearly those of that class of officers who have, for distinction's sake, been pre-eminently designated judicial factors, except that in regard to alienations competent to the minor they may have to interpone their consent and assume a cor- responding responsibility. A judicial factor is an officer appointed solely with the view of protecting and managing property or interests re- quiring the Court's interposition. Although the duty of a judicial factor is thus similar to that of the guardians above- mentioned, there is this difference between such guardians and a judicial factor — that the latter is not in the position of being the representative of the owner of the property under his management, but he may get, when the Court think it necessary, special powers to obtain or assume and act in the position of owner ; Maconochie, supra ; Scott, 21st Feb. 1856, 18 D. 624 ; and other cases, infra. Previous seques- tration of the estate confers on the factor no powers above others ; Key, 12th Dec. 1840, 3 D. 252. In "The Titles to Land (Scotland) Act, 1858," 21 and 22 Vict., c. 76, a clause has been introduced, with the view of simplifying the mode of completing a title by a judicial factor or other judicial manager, which at first sight seems to subvert the principles which have been laid down as to the relation of the judicial guardian to the property under his management. The clause is section 21st, and is as follows: — K 140 LSI AL OR fOMMuN LAW 1>UT1ES, POWERS, &C. " Where a judicial Tactur or other judicial manager shall *PI*b' ^0' potitioii for authority to complete a title to any lands forming part of the estate under his management, and whore the petition shall spicify the lands to which such title is to be completed, the warrant granted for completing such title shall also specify the lands to which such title is to be comi>leted, and such warrant shall have the legal operation and elfect of a disposition of the lands in favour of such judicial factor or manager from the i)arty whose estate is under judicial management, to be holden in the same manner as such party held or might have held the same, except in the case where the subjects contained in such warrant shall be heritable securities, in which case such judicial factor or manager, on recording sucli warrant in the appropriate Register of Sasines, shall be in the same position as if such party had granted in his favour an assig- nation of such heritable securities, and as if such assignation had been recorded in the appropriate Register of Sasines at the date of recording such warrant." The first question that suggests itself on a perusal, and with special reference to the words "judicial factor, or other judicial manager," is one whith the omissi«»n of the four last words would have obviated ; and the only case, for which we shall see that they do provide, is one in which a title has never as yet been made up by the judicial oflicer. The question is, — An- applications for power to complete titles under the act restricted to those cases where a title could, previous to its passing, be taken in favour of the factor, or are all judicial managers to be entitled now to make up titles to the subjecls on \vlii( li they are appointed in their own names ? Were the answer to be returned, that the clause is to be taken in its widest sense, it would, by im- plication, involve a very material change on the principles of feudal conveyancing, as hitlmrln ;iip|.litd to estates under judicial managonniit. rnlil the passing of the act, titles USUAL OR COMMON LAW DUTIES, POWERS, &C. 147 were made up in every case, except that of judicial factor, in tlie names and persons of the wards, to whom the Court's officer stood merely in the relation of guardian. Now, no intention is announced of effecting the repeal of previous practice, and this would have been necessary to clear the way for such an important alteration. But why are the words " or other judicial manager" used ? The judicial managers of burghs may require to complete a title in their persons ; and to provide for this case it is quite conceivable that the provision was made, although such officers have never yet had to do so. This construction is the only one which admits of the words being retained as having any signification, at the same time that it enables us to say, with the more probability, that under them it was not intended to include factors loco tutoris and ahsentis and curators bonis, and, by implication, to effect the important change in practice to which it has been thought that they inevitably lead. This construction is not necessarily affected by the sub- sequent enactment, that the warrant to be granted by the Court on the officer's application is to " have the legal opera- tion and effect of a disposition of the lands in favour of such judicial factor or manager from the party ivliose estate is under judicial management." Doubtless, there is here room for contending that this only enables the officer to make up a title in his own person where he has a ward ; but then this is the very case in which no title in his own person is necessary. And as a judicial factor — on a trust-estate, for instance, where all the trustees have died after infeftment, or where the trust-estate has been sequestrated and the management of the trustees thereby suspended — cannot obtain any title from the party whose estate he is managing (that is, the truster) because there is no title in his person, a literal interpretation of this enactment would render the clause nugatory. k2 148 USl'AL OK COMMON LAW DUTIES, POWERS, &C. This result, liowevcr. is oliviattd if the words " from the piirty wliose estate," whicli ereato all the (liniculty, and seem to point to an existing ward, an- lidd to refer to the party in whose person the fee of the lands is vested, or, if the trustee he dead, in whose Iiercdifas Jaccjis they still are, and whose estate, as reU rSlAL oil COMMON LAW 1>ITIKS. roWKRS. &C. Nvliiili lif is called u)><>ii to do no, in an apiilicaticn fur his discharge or otherwise, oi" which we will tirat in discussing the principles on which an accounting by the officer takes place (see also infra, p. lo3). The termination of office de- pends upon either circumstances personal to the officer, such as insolvcn(y, absence animo rcmanendi, death, &c. (and these are treated of in our second chapter), or circumstances connected with the nature of the office itself, such as puberty, majority, sanity, failure of joint nominees, &c., and to these attention was directed in our lirst chapter. The limitations as to the endurance of the judicial office imposed by statutes, &c., are hereinafter mentioned. Accordingly, where the office of tutory fell by the officer's death, and it was afterwards found necessary to have re- course on his cautioner, liability was found to attach only quoad sums payable while the office endured, and not quoad those of which the term of payment had not arrived when the office fell ; Bogles, 17th Jan. 1794, :M. •J1i»7. Funds or obligations then extant, transferred to and accejited by the wanl, or by any other party in titulo to call upon the officer for an accounting, must be given credit for in full, although subsequently loss arises or the value falls ; ]\Ioreland, IDth Feb. 1831, 9 S. 478. But where rent had been received before it was due, — the term of payment not being until after the expiry of office, — the officer and his cautioner will be liable therefor; Cowan's Hospital, 23d Nov. 1832. 11 S. 81. Having thus given a general statement of the position of the judicial officers of whom we are treating, in relation to the property cr interests confided to their care, and of the distinctions that obtain in regard to them, we proceed to illustrate it by a reference- to the cns<'s on the subject of their duties, powers, and liabilities. And altliougli it may bo rath(!r difficult to preserve the division sufficiently for easy reference, we jiroposc, in tlio first ]darc, to notieo USUAL OR COMMON LAW DUTIES, POWERS, &C. 151 the decisions as to their iisual or ordinary i^oiuers, duties, and liabilities ; and to reserve for after consideration tliose wliich relate to special or extraordinary powers, duties, and liabilities. The us2ial or ordinary poivers, duties, and liabilities of all factors were, unless in so far as modified by decision or the nature of the office, regulated by Acts of Sederunt, of date 31st July 1690, 25th Dec. 1708, 31st July 1717, and 13th Feb. 1730, until the passing of the Pupils Protection Act (12 and 13 Vict., c. 51) on 28th July 1849. As that act does not, in the alterations it effected, include all classes of factors (Morison, 21st Feb. 1857, 19 D. 504), it will be ne- cessary to notice the provisions of the Acts of Sederunt and statute separately. The object of the officers' appointment and their primary duty is to protect the property and interests committed to their care, and to manage for the benefit of the proprietor and all having interest ; and as the appointment has been made on a consideration of the benefits all parties interested obtain, the first charge against the factorial funds is the expenses incurred in connection with the appointment, in so far as these have not been recovered from other parties, as is some- times the case (see Chap. II.) ; and this holds good also as regards the expenses connected with the appointment of burgh managers ; Greig, 21st Jan. 1842, 4 D. 422. The performance of the factorial duties devolves from and after the officer's finding caution, except in those exceptional instances, e.g.,hi\rgh managers {infra), in which caution has not to be found, and then his duties commence from and after his acceptance of the appointment. Thus it was sustained as a good defence against an action by a tutor that he had not found caution ; Congleton's Tutor, 18th Dec. 1550, M. 16222. Parties cannot previously pay safely ; and they should see the Extract Decree of the officer's appointment, as it is the certificate of all the neces- ir>'2 rsl Al. OK (MMMON LAW DLTIKS. I'UWF.US. iitr. sary j>rL'-iVi|uisitos to his bcgiiuiing his duties having hcon complied with ; DonaUlsoii, 18th June 1833, US. 740. As, (111 the t'lif hand, payment to the ofllrer alter lie has pro- perly entered on utHec frees the debtor (A. B., 20th July 1540, M. 16'J19), so ereditors cannot refuse to receive pay- ment from an officer so accredited; FuUerton, 11th July 1833, lis. l)G2. Where the factor was a partner of a firm of law-agents, and the firm had falsely represented that he had found caution, and had a gotxl title to receive and dis- charge sums due to the estate, and he afterwards became bankrupt, the firm and individual partners were found liable in relief of all loss to the debtors who transacted with the factor on the faith of it ; M'Farlane v. Donaldson, 12th May 1835, 13 S. 725. They had also incurred liability as vitious intromitters with the estate, a ground of liability long recognised; Edniistoii, 18th July 1635, M. 162G4. The I'lipils Protection Act enacts, with reference to the romniencenieiit of the factorial power, in section 2d. that " no factor shall enter upon the duties of his office, nor shall an Extract of his appointment be issued, until after such caution is founG. From these cases it will he seen how important the point there settled is, in reference to the ma- chinery introduced by the Pupils Protection Act, for pre- venting irregularities in the conduct of the factors to whom its provisions a})ply, and consequent loss to the funds and estates under such management, and to the parties interested therein. Where there has been a continuation of the man- agement beyond the office, the officer's accounts must be balanced as at the date of the expiry of the office, and for tlie balance as so struck, and his subsequent intromissions the officer must further account so as to satisfy the Court and admit of the ascertainment of a balance which he may pay or consign ; Accountant of Court v. Wilson, 12th Feb. 1852, 25 Jurist 296 ; Baird, 15th June 1854, 26 Jurist 498. With the view of a useful division of the decisions on the subject of which we are treating, we subjoin an analysis of the provisions of the before-mentioned Acts of Sederunt, and under tin- heads of that analysis we sliall (Midcavonr to classify the ca.'^es. A factor's ordinary duties, powers, and lial)ilities arc in these Acts of Sederunt laid down as being— I. To recover all rents, profits, and debts by every neces- sary means, and, if it be necessary, to expcde confirmation in his character of factor as executor-dative, and to make up other titles as accords. IT. To dispose of the personal and moveable property be- longing to thf estate for an adfcpiatc price or value, " accord- ing to the rules of law and ns prudence rccpiircs," and to apply and manage the ca])ital and income of the estate. ill. To grant tacks or leases for the pcrioil oftln jiidjcjal management, and for one year fnrtlirr. USUAL OH COMMON LAW DUTIES, POWERS, &C. 155 IV. To lodge with tlie Clerk of Court the following Rental, Inventories, Accounts, and Papers, viz. : — 1. A rental of the estate within six months after extract- ing the factory, and periodically to lodge informa- tion of the alterations thereon. 2. An inventory of the personal obligations and moveable property, and periodically to lodge information of the alterations thereon. 3. Copy of the confirmed testament that may be expede, and of all eiks thereto. And 4. Annual accounts of the management ; and in account- ing therefor, — (1.) Eases and profits must bo communicated. (2.) All debts or claims against the estate, bought up directly or indirectly by the factor, must be held and entered as discharged and extinguished. (3.) Interest must be allowedon monies recovered and not invested. And (4.) A sum by way of commission (but nothing else) may be charged along with outlays. And V. To be liable to the penalties following, viz. : — 1. Removal on failure " in any part of the premises." 2. Payment of double the amount of any deficiency in the rental lodged as aforesaid, and of any increase thereon omitted to be noticed afterwards. 3. A mulct for failure to lodge full copies of the con- firmed testament and eiks. And 4. A mulct, not being under half a-year's commission, for failure to render accounts annually. Recovery of Estate. — As regards estate in Scotland, and the duties he falls to perform within the jurisdiction, dele- gation by a factor is incompetent ; Bell, 7th March 1834, 12 S. 531. But, as will be seen afterwards, he is quite entitled to have the best legal advice. Where a factor had ir»G isiAi. on t'KMMDN LAW lu rii:s, I-oWKHS, f>^i\. In Barstow v. Inglis, 5th Dec. 1857, 20 D. 230, tlie parly who pursued was both judicial factor on an intestate estate and factor loco abscnfis to USUAL OR COMMON LAW DUTIES, POWERS, &C. 159 the successor who was abroad, and he sued the action witliout special powers ; and in h'ke manner an action of declarator, multiplepoinding,and exoneration was Lroughtby the judicial factor on a trust estate without any extraordinary authority, Moncrieff V. Menzies, 25th Nov. 1857, 20 D. 94. TIjc whole subject of the powers of a factor loco absentis in regard to actions was before the Court in Lumsdaine, 15th May 1827, 2 F. C. 472. An action had been raised by the mandatory of the absentee, and the factor having been appointed on the mandatory's death, the question arose whether he could con- tinue the prosecution of the action. There w^as a difference of opinion on the Bench ; but the Court, while they in that case deemed special powers necessary, thought there were other cases wdiere they would not be required. " The powers of the factor must depend in each case upon the nature of the action and circumstances of urgency in which it was rec[uired to be prosecuted. There are many actions, such as prosecutions for rent and actions for re- moving, wdiich a factor may insist in without any special authority, and in the prosecution of which his ordinary duty often consists. There are other actions of a more extra- ordinary kind, which it is equally plain he cannot institute without an express mandate. The great obstacle against admitting the powers of the factor to carry on the litigation at his own discretion is, that he undoubtedly cannot bind the principal party as the mandatory would have done. The defender would not be safe by a decree of absolvitor, because the pursuer might disavow the proceedings of the factor." These remarks are referred to in Kennedy, 18th Feb. 1851 13 D. 705, where a factor loco absentis sought to reduce a service which stood between his ward and an estate. Lord FuUerton remarked — " The factor may obtain a service of the absentee ; there is a decision to that effect, and if so, I do not see why he should not challenge the service of an- other which stands in the way of the service of the absent IGO ISIAL on COMMON LAW nrilKS. I'OWKHS, \0. principal. Then wo havo here sufficient assurance that this is not a random measure a(lo])t('il ]»y tlie factor. It is in some measure forceil up^n him l>y the cinnmstances of the case. In fact the sisters, the nearest lieirs in so far as we see, are ready and willinp: to raise the action." Acting on this hint, tlie sisters olVered and were allowed to sist themselves as pursuers of the action also with the factor, and the C(»urt thereupon repelled the objection to the title to sue, and re- mitted to proceed with the cause. There is, moreover, no neetl of special authority to carry on actions raised hy the factor's predecessors in office, M'Gregor, 24th ]\Iay J 828, r. S. 853; Macintosh's Trs., IBtli Dec 1836, 15 S. 255; Forbes, 10th June 1845, 7 D. 853 ; Fraser, 10th Jan. 1850, 12 D. 914 ; and in the same way a factor may sist himself in any summary application by a predecessor, sucli as ii peti- tion for special powers. Chambers, 27th I^Fay 1856 (not re- ported) ; or for audit of his accounts, Stewart, 20th Feb. 1850, 12 1). 744. A factor on a trust estate can raise a process of multiple- poinding and exoneration without any special authority, in order to settle the rights of claimants thereon ; Sprott v. Pennycook, 12th June 1855, 17 D. 840. It is his duty to raise actions to reduce illegal acts and deeds of his prede- cessors, and by which otherwise he would be bound ; Car- lisle, 27th Feb. 1766, M. 8380 ; Crawford, 28th Nov. 1837, 16 S. 107. A curator hoiii's is bound to challenge a deed to his ward's lesion, and for this likewise no special authority is required ; Carlisle supra; Blaikie, 14th Nov. 1838, 1 D. 18. He must ii\Ao follow out the procedure necessary to ob- tain compen.sation for factorial property under the Lands Clauses Act (8 Vict., c. 10); r.all. 20th F.b. 1S5(), 12 D. 913, But a factor loco tntnris cannot, under the Kuther- furd Act (11 and 12 Vict., c. 36), ai)ply for authority to feu part of his ward's estate which he holds under the fetters of an entail; r.oyle, 19th Fob. 1S53, 15 P. -120. A fnrtor can USUAL OR COMMON LAW DUTIES, POWERS, &<•. UJl petition for recall of arrestments used in Lis hands ; Rennie V. Morrison, 27tli Jan. 1849, 11 D. 457 ; Matthew, 13th Nov. 1858, 21 D. 18 ; and it would seem that he is entitled to seek the removal of arrestments used in the hands of debtors to the estate under his management. A factor, in virtue of his oflBce, is not only entitled, but bound to appear in any actions touching the interests of the estates on which, or the ward to whom he has been appointed ; Mackenzie, 1st June 1836, 14 S. 858 ; Pringle, 6th July 1841, 16 F. C. 1268 ; Thomson, 14th July 1841, 16 F. C. 1307. Power to expede confirmation, in his own name as executor-dative, if need be, is expressly conferred on judicial factors by the Act of Sederunt 1730 ; see infra, p. 163. A reference to a judicial officer's oath w^ould seem to be competent, but only in reference to matters occurring sub- sequent and not prior to his appointment ; Stewart, 12th Dec. 1815, F, C. The competency of a factor loco tutoris making affidavits under the Rutherfurd Act (11 and 12 Vict., c. 36), was view'ed as settled in the negative in Boyle, 19th Nov. 1853, 15 D. 420. But as regards affidavits on bank- rupt estates, the competency of any officer s making them is recognised; Reunie, 27tii Jan. 1849, 11 D. 457; Aitken, 26th Feb. 1852, 14 D. 572 ; and if they be entitled to act in any respect as creditors, they would be entitled to apply for sequestration, and otherwise act in that capacity. There cannot be any doubt of a judicial officer possessing at common law the power of raising actions, for it was in this form only for long that he could get any special authority whatever. Since the form of a petition has been adopted, this fact has been lost sight of in the anxiety of factors to have special powers for every act — a practice which has grown in proportion to the ease with Avhich the Court have granted such applications, although it must be confes- sed they have been all along at pains to inform the appli- cants how worthless the special powers obtained from them L IG'2 USUAL oil COMMON LAW DUTIES, POWERS, &c. really were. There have accordingly been cases in which special powers, in connection with actions, have been sought and obtained ; but they arc very fow, and arc found treated of in a subsequent part of this cliaptcr ; see infra. It is not necessary that the officer should in every case institute suits, although be is the party wlio can alone ad- minister the property in dispute, and parties may pursue such an action who can in no event pretend a title to the ad- ministration. The Magistrates and Nine Trades of Dundee were foimd entitled to raise an action to vindicate a bequest which, it was alleged, was ineffectual for establishing an hospital for boys in that town ; and they concluded that the defenders " should be decerned and ordained by decree foresaid to pay and make over to the pursuers, in order to the same being applied by them to the erection and estab- lishment of an hospital as aforesaid, or to such person or persons as maybe appointed by Our said Lords in the course of the proceedings to follow hereon, for the purpose foresaid, the sum of," etc., " in fulfilment of the testamentary bequest and intention of tlie suid Joliu ^^lorgan ;" ]\lagistrates of Dundee, 14th Dec. 185G, 1'.' I'. ICS an6 {'I'dd July 1858), Confir- mation and Probate Act, by l»aviu<>- extemlcd tlie effect of confirmation to jtropcrty in En^huul, if tlio confirmed tes- tament be [»roduce(l in the projter Probate Court, has super- seded the necessity of any ollieer's taking out letters of alministration in future. A factor loco tuforis, or curator hoiti.s is not able to con- firm in his own name, Imt must, wliere tliat is necessary, cxpede confirmati<»n in the ward's name ; and for tliis ho rotjuires no special powers; Kirktotms, 12th Fcl>. KJG'i, M. 1()-J<)8; Watlierstone, June 1005, i\r. 10273. At the same time that the factor in tlic above case of Lindsay ,c;ot autho- rity to take out letters of administration, he asked and ob- tained power to expede confirmation of the estate in Scotland. On the same principle that a factor /oco fuforis or nhscjifis, and a curator honifi lies under the duty of completing his ward's title to moveable ])roiMrty, the duty of making it up to heritable property is an act of ordinary management ; Edmiston, 18th July 1035, M. 10204. Even where the Court, in a rjuestitjn as to a i)upirs title to an estate, acknow- ledged the circumstances of dilliculty in wlii( h liis guardian was placed, they found him liable Ibr the damage accruing to tlie ]»upil from the non-completion of liis title, as he "ought and miglit have raised an inhibition upon the con- tract against the heir male, wliicli wmdd have ]trevcnted all hazard;" Fergusons, 13th .Tan. 1077, i\r. 1021)2. In fact, tlio reason for the a])pointment of a factor loco tuforis in Kiddel, nth Nov. 1740, M. 10350, was, that the pupil might be serv( sell it at tlu- l»cst avail, as tlie markets now rule," as prices had fallen since striking the fiars, Imt his application was refused; Wright, 19th June 1701, M. 7421). Fouikainhall, in reporting the case, says, in reference to these officers generally, " They are left to act in these things as rational provident men would do, as they will l»e answerable on their peril." Where a factor did (most unnecessarily, hut he was at the time applying for other powers) ask the Court's sanction to a sale of wood at maturity, they refused it, because at the time markets were very unfavourable ; Thriepland, 7th June 1848, 10 D. 1234. The words of the Act of Sederunt 1730 are important, in so far as they bear on this branch of uur subject, and em- body the dicUim we have just quoted. " If corns, cattle, out- sight or insight plenishing, or moveables of any sort shall be under the factory," " the said factor shall be obliged to manage such obligations for money or effects, and to manage or dispose of .such moyeables according to the rules of law, and as iirudence requires for the benefit of the proprietor and all having interest." Attention to this provision has of late been much more strictly enforced than previously ; and there seems to have been sad necessity therefor, when we find the Court entertaining applications for special powers to dispose <»f moveables, and authorising the investment of the jirocoe., 21st Dec. 1848, 21 Jurist 73. Again, a curator />o///;9 was told that his duty, USUAL OR COMMON LAW DUTIES, POWERS, &c. 109 in regard to some foreign stock in which the estate was in- vested, and had been so previous to his appointment, was to have sold, and now to sell it, at the first suitable opportunity, and to invest the funds in heritable security in Scotland ; Dal- gleish, 13tli Feb. 1849, 11 D. 1030. Very shortly thereafter a factor loco hcto7'is was found neglectinghis duty in this respect. He was directed to call up and realize the sums invested on personal security, and to lend it out on heritable security. The Court laid it down, as the general rule, that all invest- ments of the funds of lunatics and minors should be such, subject to exceptions in particular cases ; Lindsay, 10th March 1849, 11 D. 1030. The conduct of a tutor in respect to the realization of the pupil's estate was made the subject of some important re- marks in the case of Baird, 29th June 1858, 20 D. 1176. There there was no action of relief or damages, but merely a report by the Accountant-General, and of course no effec- tual judgment as to the officer's liability could have been pronounced in the absence of a proper legal contradictor in the pupils, either after tutellage or with a new and special guardian, or of anybody else having a legal interest. The fact there was that, by depreciation of Western Bank Stock, through the bank's failure, which the deceased had left as effects at his death, loss had arisen to the estate. The tutor had not been able, as he alleged, to realize these shares before loss accrued, and they remained in the state in which the parent had left them, with the exception of some fifteen he had disposed of. Lord Deas remarked that " as regards investments made by the deceased there cannot be a rigid rule that the tutor is to sell everything at once, for the re- sult of that here would have been enormous loss, which the tutor most properly avoided. The tutor's duty in selling is to exercise a sound discretion for the pupil. The question of realization must always be a question of circumstances ;" thus, in effect, re-echoing tlie injunction of the Act of Sede- 170 USUAL OR COMMON L.VAV UL'TIES, I'OWERS, &c. runt to factors. The Accountaut-General in that case moved for consignation by the tutor of the value of the unrealized shares, and in sui)purt of that mt)tion appealed to the case of Geddes, 21Jth Juno 1858, 20 D. 1174, where the Court ordered the curator to consign the value of stocks ho had put beyond the control of the Court ; but Lord Curriehill took this distinction between the cases, — that there the oflicer had sold the shares, and had the money either in his own pocket or invested in a manner ditlerent from that in which the funds ought to have been invested, whereas in Baird's case, the stock of which it was sought to have the value consigned was unsold. Although heritable security is recognised as pre-eminently the security for factorial funds, government stock was re- cognised as a proper investment in lluldane, 23d Dec. 1848, 11 D. 28G ; Geddes, 29th June 1858, 20 D. 1174. llailway debentures were denied the Court's sanction in A. B., 29th June 1854, IG D. 1004 ; Mori.son, 5th Dec. 185G, 19 D. 132. Lord St Leonards in Thomson v. Christie, IGth June 1852, 1 l^Iacqueen 23G, gave to trustees the following advice as to heritable securities, and it is equally applicable to the oflicers of whom we are now treating: — "It is not prudent to advance money where there exists a prior mort- gage. House property is never very satisfactory, for it is liable to casualties which do not attach in general to land." The im])ortance of this advice is shown by a reference to the above-mentioned cases of Geddes and IJuirJ, wlicre, in the prospect of loss, the Accountant-General moved the Court to order consignation by the factor, and in the first of these ca.ses an order to tliat efTeot was made. Such consignation, however, was ordereil williout prejudice to the legal claims of parties interested, and nn rtly oh niaj'orcm cautdam. The legal position of parties is shown by a curator bonis of a lunatic having been found liable to repay L.2000 lent out by him on inadequate heritable security ; Forsyth, 28th Jan. USUAL OR COMMON LAW DUTIES, POWERS, &c. 171 1853, 15 D, 345 ; and where a curator bonis carried on a manufacturing concern, he was held to have done so on his own responsibility, and that no loss occasioned thereby could be charged to the estate ; Philip, 22d Nov. 1827, 6 8. 103. On the same principles that a trustee must not only keep the estate indemm's, Geddes, 29th June 1858, 20 D. 1174, but also account for the profits realized where they exceed the interest chargeable against him, it is thought that an officer of Court would be equally liable ; Cochrane V. Black, 1st Feb. 1855, 17 D. 321, and 16th July 1857, 19 D. 1019 ; Laird v. Laird, 26th June 1855, 17 D. 984, and 28th May 1858, 20 D. 972. The investments by the factor are of course to be taken in the name of himself or his ward, on the principles ex- plained in the beginning of this chapter. The purchase of heritable subjects is an act beyond the ordi- nary powers, and a factor loco tutoris having without special authority so invested part of the estate, the Court found that it must be held by him on his own account and risk, and he must give his wards credit for the sums expended ; Lambe, 24th June 1834, 12 S. 775, and 14th Dec. 1837, 16 S. 219. But it is right to mention that circumstances were held to have justified a factor loco tuto7'is advancing to the mother of the pupils a part of their estate to carry on busi- ness in order to maintain herself and them, although the security given for the advance afterwards proved insuffi- cient ; Hamilton, 11th July 1834, 12 S. 924. A special case occurred again in Macleod, 5th Dec. 1856, 19 D. 133, where the whole property of the pupil consisted of a sloop, which the factor had not realized. The Court thought that the factor's keeping the pupil's property at hazard in trade, in this way, was at best of doubtful propriety, and that, at any rate, if he was satisfied that he should do so, and was to lay out capital of estate in this way, he should have sought special powers. 1 (J USUAL OK COMMON LAW HI TIKS. lOWKUS, .S;c. AUlu)U_:;li, in tlif Act of Snlrrmit of 17:'.<>, no reference is nmdo to a factor's hankini:; tlic lasli un liaml, tlio Court from an early period encourai^cd tutors and otlur olHcers of that kind to do so. Accordinj^ly, tliey refused to find tutors liable for money deposited with bankers in good credit, when the deposit was made ; Gib, r>t]i Feb. 170M, ^I. 163G3. The obligation on a factor on a fund in medio in a multiplcpoind- ing is to consign the funds he recovers in liis own name ; Mackenzie, 20th Dec. 1828, F. C. 223. On similar principles in England, a receiver was found not liable for a Itanker's failure, Salway, 4 lluss GO, and 2 11. and ^I. 215 (reported as White V. Baugh, 9 Bligli N. S. 181) ; but the money must be lodged in a separate account, Wren, 11 Yes. 377. Al- thougli the Provisions of the Pupils' Protection Act do not apply to all factors, the restriction therein contained as to the banks in which money is to be deposited has practi- cally extended itself to the cases of all judicial officers. The section of that act which treats of this subject is the 5th, and is in these terms: — "The factor shall lodge the money in his hands in some one of the banks in Scotland, established ])y Act of Parliament, or Pioyal Charter, in a separate account, or on deposit, such ac<>ount or deposit being in his own name as judicial factor un the estate ; and if the factor shall keep in his hands more than L.50 of money belonging to the estate for more than ten days, ho shall be charged with a sum to the estate at the rate of ] J.20 jK-r centum jur (innnm on the excess of the said sum of L.5() for such time as it shall be in his hands beyond tho said ten days ; and unless the money has been so kept from innocent causes, the factor shall 1)e dismissed from hisolfice, and shall have no claim for commission." We defer re- mark on the exception containeil in the last clause until we come to treat of the circumstances ill wliidi rominission is or is not allowed V)y the Court. It may be open to <]ue8ti<.»n wheth'T the jtenalty impc^sed by the statute wonM be exi- USUAL OR COMMON LAW DUTIES, POWERS, &c. 173 gible if tlie factor were to be found to Lave lodged the funds in another than tlie statutory hanks. Five per cent, inte- rest was found due upon a sum illegally lodged with an un- chartered bank in a case under the Lands Clauses Act ; Methven's Executors v. Edinburgh, Perth, and Dundee Eailway Co., 1st July 1831, 13 D. 1252 ; see infra. As will have been observed, no distinction obtains as re- gards the duties of managing heritable property. That may consist either of the heritage constituting the estate at appointment, or heritage — that is, securities taken by the factor in the course of his management, or subjects to which the ward has succeeded during judicial guardianship. The factorial duty in regard to the produce of heritable estate is to draw and collect it, paying therefrom the taxes which are chargeable against that produce, such as income tax, &c., and against the subjects whence it is derived, such as feu- duties, land tax, i>ly tin- original defect. The case of Falconer, 17th Fel). 17i»'J, M. 16380, was a carefully considered decision ; and there a factor loco iuton'fi raised a reduction of the decree-arbitral in a suhniission which his i)redecessor in the factory liad entered into with a debtor to the pupil, on the j^round that it was idfra vires of such an oflieer. Lord Dreghorn rejnirts the issue of the case thus: — " Tlu' Court in general thought that a factor Ivco iutoris might enter into a reference, although it was observed that, if the question was not the i)r()per subject of such an agreement, or if an imitrojier jterson had been chosen arbiter, the jnijiil might be restored ex capite kiesionifi. The Lords found that a factor loco tutoris miglit enter into a reference, and there- fore in this case assoilzied." The same view of the powers of a curator honis to a party incrqmx was taken in Corson, 10th July 1835, 13 S. 1U'J3, where the Court refused a peti- tion for authority to enter into a submission regarding the moveable effects of the ward as unnecessary. The doctrine that it was the dut}' of the curator bonis to a i)arty inrapox to enter into an arrangement for the division of an estate in which she was interested, where it was evidently beneficial, and that he had plenty of jjuwcr to do so, is announced in Kennedy, loth Nov. 1843, (I 1). 40, although the probabi- lity of the Court's granting special authority, had it been asked, is frankly stated by the Judges. A curator honis to a lunatic, finding on ciitcriiin- uiK>n ollice a ])ending suit nhiting to his waids heritage, arranged a compromise of it, and then askcupil does not incur a passive title by the intromission of his tutor, Boyd, 30th Nov, 1()G5, M. 1G275 ; whereas others are to the oppo- site elfect, Frasor, 15th Nov. 1G79, ]\I. 10298 ; Dnammond, 7th Nov. 1704, M. 1G320. It would rather api)oar to be the law that, until renunciation or re]>udiation, the ]iu|iil would be boinid by the tutor's actings; Anonymous, 3il Nov. 1GG7, Brown's Sup. iii. 183. Accordingly the privilege of re- nouncing a succession where it has been taken up, or dis- claiming actions where they have been raised by a tutor, is competent to the minf»r ; Reidlieuch, 14tli ]\lay 1562, M. L'SUAL OR COMMON LAW DUTIES, POWKRS, &c. 179 8999 ; Drummond, 28th June 1628, M. 8999 ; Ruthven, March 1682, M. 9030 ; Tailors of Leith, 7th Dec. 1687, M. 9001, In this last case a moveable succession had been taken up, and although the inventory given up limited the liability, yet as the minors qua executors would be exposed to actions and put to charges, they were held entitled to renounce. But whenever there is room for restitution, it must be made before renouncing ; Farquhar, 20th July, 1630, M. 9023 ; Anonymous, 3d Nov. 1667, Brown's Sup. iii. 183 ; Ruthven, March 1682, M. 9030 ; Tailors of Leith, 7th Dec. 1687, M. 9001 ; Earl of Aberdeen, 1st Dec. 1708, M. 9031. In tlie case of Bremner v. Campbell (in Court of Session Kerr v. Bremner, 5th March 1839, 1 D. 618), 9th May 1842, 1 Bell's Appeal Cases 280, a party, whose tutor had had vitious intromission, and had thereby incurred for him a passive representation of the deceased, was held to have been rendered liable to creditors only quantum lucratus. However, as the tutor's actings were held to be quite legal, and not ultra vires, and as the minor had not renounced or repudiated, there was no room for restitutio in integrum. The general principles of law are alluded to in the opinion of the Judges in the Court of Session, and are as we have stated them. " No pupil (^an be a vitious intromitter, because such intromission is a delinquency which a pupil is in- capable of committing. A defence of somewhat the same nature might have been urged also, if the intromission had taken place during the defender's minority ; for, though he would thereby have been rendered liable in the first in- stance, he might have obtained relief by a restitutio in in- tegrum raised during his minority, or the quadriennium utile which followed it." Not only has a judicial guardian no power to impair his ward's estate or to increase his responsibilities, but by no act of management can any change in the succession to the ward be effected. Thus where a lunatic was in possession m2 ISO r>rAL OH COMMON I. AW Id'TIKS, ToWKKS, &c. of an entailed estate, Init there was no proliiltition to bur- den for del)t, and as her mrator bonis was not entitled to apply her personal means to the building of a steading, and without this the farm eould not be let, the Court, con- sidering moreover that the lieirs of entail who were not the lunatic's successors would hf tlie parties to benefit by this expenditure, authorised their oificer to borrow the necessary amount on the entailed estate ; Eobertson, 14th July 1855, 17 D. IIIG. The investment of funds on heritable security, for instance, does not make them descend to tlie heir; nor, on the other hand, can heritable estate be changed to move- able to the prejudice of the ward's heir ; Sharp, IDth July 1G71, M. 1G285; lleid, r2th July 1()88, M. 16312; Ross, 31st Jan. 1793, M. 5545; Graham, (itli i\larch 170S, U. 5599 ; Morton, 11th Feb. 1813, F. C. ; Colquhoun v. ]\[ackay, 9th June 1826, 4 8. 699 ; Kennedy, 5th Nov. 1843, 6 D. 40. The last case l)rings out the important distinction be- tween the judicial guardian's voluntary acts and those which are inevital)le in law (c.f/., if the curator bonis of a titular had to sell teinds to an heritor). Acts of the latter kind do or do not aftect the succession according to circum- stances; Garland, 12tli Nov. 1841, 4 D. 1 ; Heron, 3d June 1856, 18 D. 917. A tutor was found to have acted rightly in applying the proceeds of heritable bonds in the repair of the ward's dwelling-house, as the benefit thereof accresced to the Inir jind not (o (he cxccntur; Hill. 5th Dec. 1665, M. 16276. Th(! whole authorities on this point were subjected by Lord Deas to an elaborate examination, in connection with tin- law of l']nLdiiMil on tlif subject, in the case of MoncrielT v. Yeaman Miln, Kith July 1856, 18 D. 1286. There a curator bonis had, in order to 1 lie relief of his ward's estate, transferred certain personal debts against her heri- tage ; and on her death, her heir sought relief thereof from her executor, as the transaction conld not affect the succcs- USUAL OR COMMON LAW DUTIES, POWERS, &r. 181 sion by converting moveable debts into heritable ones. To this relief the Court found the heir entitled, — the Lord President remarking, " this general proposition is very clearly established, that tlie character of a succession is not to be altered by the act of a curator. There may be excep- tions to that proposition in cases of absolute necessity ; but the general proposition is, that it cannot be done. If the estate is sold, for example, for the payment of debt by com- pulsion and legal necessity, that is not an alteration of the succession, but an extinction of it." " I hold that the cura- tor had no authority to convert the estate in this way — all he had to do was to pledge the estate temporarily, and if he afterwards had funds in his hands, he was not only entitled, but bound without coming to the Court for au- thority to apply them to paying off the debt." Lord Curriehill held that " there is no principle better or more completely established in the law of Scotland than the plea as maintained by the heir in this case. I do not," his lordship continued, " go into hypothetical cases, in which there may be conversion, for there is no precedent for hold- ing that a sum of money, made a burden by voluntary act on the estate of a ward, can be made to afiect her succession. There are various cases, in curious circumstances, in which it has been held that such burden is not effectual. There is neither authority nor principle for the reverse." The mode in which the executor of a ward must make up his title to a heritable security, taken by a judicial guar- dian in the course of his management, is by declaratory ad- judication upon a charge ; see remarks of Lord Curriehill in Marquis of Ailsa v. Jeffrey, loth Feb. 1859, 21 D. 492. The aliment of their ward is a duty to which judicial guardians are bound to attend, and they require no special authority to make provision for discharging it in the general case; Gordon, 30th June 1832, 10 S. 742. Notwithstand- ing all the strictness of tutorial accounting, where tutors en- 1S2 rsi'Ai, on common i,a\v iutifs. powkks. <^c. tcrtaincd tlu'ir ward after tlio cxitiry of tlu'ir oHicc, a charge therefor was " allowed to compense in a count and reckon- ing against them;" Watson, 6th Foh. 1G23, M. 16242. Where a party has the liferent of all the pupil's lands the guardian is entitled, nay. in many cases bound, to pursue for an aliment; Noble, 14th July IC'JT, M. 10248; Finnic, 22d Feb. 1631, M. 16255. Where the mother was the liferentrix of the whole estate, and instead of allowing aliment ofTcred to entertain the pupil, these cases decide that that is not a relevant and sufficient defence. The pursuers thrrc, how- ever, were tutors, and not a factor loco tutoris or curator bonis, whose powers as regards the person of the ward differ from those possessed by the common law guardian, as ^vill be hereafter seen, in many respects. The curators of a minor were found liable in payment to the part}', who had been tutor-testamentary, and with whom the minor chose to stay, of a reasonable sum as aliment, but not of the whole proceeds of his estate ; Harpers, Gth Feb. 1633, M. 16262. The curator bonis of a lunatic father was decerned to make pay- ment of a sum, which he admitted could be afforded, as aliment to the daughter; A. v. B., 6tli I^Farch 1858, 20 ]). 778; see also cases of Grant, 24th Feb. 1838, 16 S. 652, and 3d March 1840, 2 D. 722 infra. Except in very singular cases a guardian cannot expend in aliment more than the annual income of the estate; Pearson, 26th July 1678, M. 16296; Sandilands, 17th Nov. 1680, M. 16300. The payment of aliment out of capital was held to be mal- versation, and led to removal from office in Balfour, 16th Feb. 1705, ]\r. 16320, The smallness of the stock or capital will not justify inroads f»n i( fi>r Ihe ward's nlimrnl ; Duncan- son, 23d Juno 1715, M. 8fl2S. This case decided that curators were, however, entitled to employ so much of the capital as was necessary to put the minor to a trade ; see also TiVon, Jan. 1665, M. 16272. We will afterwards have occasif»n to rofcr to decisions whi USUAL OR COMMON LAW DUTIES, POWERS, &<■. 187 see and examine, and provide themselves witli proper means of checking the same." Section 5th ordains that " when bonds, bills, rules, or obligations of any sort for money or effects are under the factory, the said factor shall make a list or inventory thereof, bearing the names of the creditor and debitor, conveyances thereof, the sum of money or the thing due, the date, the terms of payment, and the term from whence annual rent runs, and from whence it is then resting, so far as he can discover ; which list and inventory, and an account of the alterations that shall happen therein, shall by the said factor be put in the clerk's hands respectively at the times, to the ends, and in the manner aforesaid," Section 6th ordains that " if corns, cattle, outsight or insight plenishing, or moveables of any sort, shall be under the factory, the said factor shall make inventor}^ thereof, ex- pressing all the particulars, and the quantity and quality or C(mdition of the same ; which inventory, and an account of such alterations as shall happen therein, expressing whence the alterations arose, and the price or value got for any of the said moveables that have been disposed of, shall likewise be put in the said clerk's hands respectively at the time, to the ends, and in manner aforesaid." Section 7th then ordains that a judicial factor, in the event of his confirming as executor-dative, " shall put in the said clerk's hands a just and full copy of the said testa- ment, and of all eiks he may afterwards make thereto, with- in the space of three months after the confirmation." A factor, however, like a tutor, is accountable beyond the inventory of the father or other ancestor's estate he gives up, if he has had or should have had intromissions to a larger amount; Watherstone, June 1665, M. 16273. A judi- cial guardian must count and reckon for whatever is uplifted by him as such, although the ward or the estate be under ob- ligation to pay the whole or part of the sums so uplifted to 188 USUAL OR COMMON LAW I'l TIKS. l-oWKUS, &f. creditors ; Bruce, 31st Dec. 1708, M. 1G32(). Wlaiv a tutor produccil no vouoliors he got allowance for cess, teinds, and feu-duties, and as regarded liis other entries he was allowed to i)ut in declarations hy the creditors of the payments to them, on finding caution to relieve the minor of all claims for the sums so allowed ; Bruce, lltli Juno 1709, M. 10327. The object of the appointment of factors and curators by the Court being, as we have seen, " that the estate of such pupils or persons may not suffer in tlic meantime, but be preserved for their behoof and of all having interest therein," the enactments necessary to give effect to this are completed by section 9tli of the Act of Sederunt. It declares that their officers shall make payment of their intromissions " to such person or persons, and at such times as the said Lords shall in the factor}"^ or otherwise appoint." The necessary warrant will be granted, during the currency of the factorial management either in a special application by the officer for the jiurpose, or in a process to which the Judicial officer is a party ; or when he applies for his discharge. The par- ties in titulo to ask sj)ecial authority for a payment have been noticed in our seconil chapter (also infra), and an application by them may pray to have the factor ordained to give in his accounts, so far as not lodged ; Murray, 24th Feb. 1840, 11 D. 710. It is by this means, or an ordinary action of count-reckoning, that a recusant factor can be com- pelled to account for his intromissions by any party having a title or an interest, e.g., his cautioner, Eaton v. Cowan, 9th June 1820, 4 S. 095, aff. 4th July 1828, 3 W. and S. 240; or his successor in the factory, Ki rr r. Bremner, 17th Dec. 183."., 14 S. ISO, H.-use of Lords, 1 Kb duly 1837, 2 M'L. 895. Accounts must be rendered even afti r expiry of office, whether by removal of the uflicer or otherwise ; Stewart, 'JOfb Feb. 1850. 12 D. 711 ; Wi. 1.1,29(11 Nov. 1851. 24 Jurist, USUAL OR COMMON LAW DUTIKS, POWERS, &c. 189 44 ; Jcaffray, 20th Dec. 1851, 14 D. 292 ; M'Allister, 22d Dec. 1853, 16 D. 301. Accounts — ivliat they must contain. — The general princi- ples on which these must be framed can be gathered from our remarks in connection witli the duty of recovering and managing tlie estate. We shall now notice more particu- larly those points on which a conflict arises between the interests of the officer and those of the estate or ward. It will be remembered that accounts, in the form of articu- late items of charge and discharge, have to be lodged annually ; and we may refer for a convenient form of such an account to that embraced in the circular issued by the Accountant-General to officers under the Pupils Protection Act, and printed in the Appendix. 1. Eases and Profits to he communicated. — The principles on which this is founded lie at the foundation of the strict accounting which obtains between the judicial managers of the estate and those interested therein. The Act of Sede- runt of 31st July 1711 declares that " if they receive abate- ment or gratuity from any creditor to whom they make payment, the benefit thereof shall accresce" to the estate. See also Act of Sederunt of 25th December 1708. The law (as we shall presently see) has made provision for pro- per remuneration fur their official trouble, and hence they are not entitled aliunde to make profit out of the estate, or in connection with it, in this way, Thoirs, Jan. 1686, M. 16308, or in any other way, Napier and Sutties, 22d July 1669, M. 16280 ; Wilsons, 26th June 1789, M. 16376 ; Duke of Koxburghe, 2d March 1824 ; 2 Shaw Appeals, 18; Guthrie, 16th Dec. 1853, 16 D. 214. The decisions as to the liability of trustees for profits are useful by way of illustration. Hence see Torrie, 31st May 1832, 10 S. 597 ; Cochrane v. Black, 1st Feb. 1855, 17 D. 321, and 16th July 1857, 19 D. ll»0 USUAL OK COMMON LAW ULTILS. luUEKS. &c. lOVJ ; Lainl v. Lainl. 'JOtli June 1850, 17 H. Ii8-i, and 'iStli May 18oS, "20 D. UTJ. 2. Facfor or curator Ix.tiiis cannot be aiu-tor in rem suani. — Sucli witlioiit (iualiiicatiiUis for the minor's use ; Toucli, 9th Nov. 1060, M. 10278. A curator's ct>nsent was held elfectual where the minor's deed was not directly in his nwn favour, althougli lie came consequentially by benefit under it ; Carstairs, 20th Feb. 1072, ^I. 10280. The plea of commixtion of funds, where a tutor alleged it in a (jui-stion with the next of kin of the dec-eased pupil, was disallowed, as tlic whole sum in the bond in r, the presump- tion a.s to hi.s holding it for jtupil's beho(;f has no place; Lady Ninewells, 5th Fei). 1087, M. 10310. Where a gra- tuitous deed had been taken in favour of the tutor, in re- ference to part of tlie pupil's estate, it was held to have been taken for tli< pujiil's iMJioof; Coclnaii, I7tli Feb. 1732, USUAL OR COMMON LAW DUTIES, POWERS, &c. 191 M. 16339. But a curator can accept of an assignation by a minor in his testament ; Craich, 22d June 1739, M. 16342. Tlie presumption as to a tutor's purcliasing debts over the pupil's estate during tutory was held to have been re- dargued by his showing that at the date of purchase it was so burdened as to render this impossible, in Buchanan 19th June 1765, M. 16363 ; but it is thought that this decision cannot be justified on strict legal principle, although an exception on somewhat the same grounds would seem to be possible in the case of trustees, to whom it is well known that the same presumptions apply, see Scott v. Thom- son, 6t]i Dec. 1854, 17 D. 124 ; but see Elias v. Black, 9th July 1856, 18 D. 1225. The restrictions as to a tutor be- coming auctor in rem suam fall when the tutory is at an end, although accounts be not settled ; Parkhill, 7th Dec. 1771, M. 16365. Deeds against which objection on this ground can be proponed are not null, but only reducible ; Bannatyne, 19th Jan. 1704, M. 8983. It was questioned whether a curator could validly consent to the minor's becoming cau- tioner for him in M'Kenzie, 26th July 1666, M. 8982, and Carstairs, 20tli Feb. 1672, M. 8962 ; but it was settled that he cannot validly consent to the minor's being co-obligant with him in a debt by him, on the principle that he cannot be auctor in rem suam, in Thomson, 3d July 1781, M. 8985. The very same principles that are applicable to tutors and curators apply to the officers of whom we are treating. A factor is not entitled to lend to himself on heritable security or otherwise, or to apply to his own purposes, any of the funds under his charge ; Elphinstone, 28th May 1814, F. C. A factor or curator bonis retaining money in his own hands is held, on the principle of having illegally lent it to himself, to be liable in interest at 5 per cent, accumulated annually ; Blair, 4th July 1843, 5 D. 1315 ; Buchanan, 13th Feb. 1847, 9 D. 700. Again, where the curator bonis to a lunatic bought a property over which he had lent the curatorial 102 USUAL OR COMMON LAW DITIKS, PoWKIlS. &r. funds, mill did imt retain out of tlio \n\co lie paid the sums si» Knt, lie was dtliitcd with tlnir amount at set- tling accounts ; Kcir's Trs. i\ Moody, I'Jth dune 1850,12 I). 1041. The Act of Sederunt of 31st July 1717 declares that "factors on t'ncuud)ered estates " shall not, " hy themselves or others, compone or buy in dehts aflccting* the same, but their so doing shall be equivalent to an extinction of such debts ;" see also Act of Sederunt of 20th I)ecend)er 1708. Under the operation of this rule, a factor cannot confer on himself, or on any partnershii) of which he is a member, any office of profit or emolument, e.f/., the law -agency in the factory, Goodsir, 10th June 1858, 20 D. 1141 ; and should such appointment have been made, the charges of the par- ties holding such office will be disallowed as a charge against the estate. The cases on this point are noted afterwards in connection with the subject of the factor's remuneration and what it covers ; infra, p. 10(5. 3. Interest. — The provision of the Act of Sederunt 1730 on this point is contained in the first section, which enacts that the " factor shall be liable for the annual rents of all rents and profits whatsoever which he shall recover or by diligence might have recovered, and that from and after the space of one year after the said rents and iirofits became due, or might have been recovered as saiil is, and until ho make due i)ayment of the same." Not the least of the advantages, whicdi attendcil the ap- j)ointment of oflicers of Court to manage estates, resulted from the enactments of the section just quoted, whicli in their spirit were much m advance of the antifpiated rules that regulated accountings between common law oflicers of a similar character — r.r/,, tutors and curators. These arc to be found in Ersk. i. 7, 25, but th«y have, in consequence of the altered circnmstancc8of the times in regard to the value USUAL OR COMMON LAW DUTIES, POWEKS, &c. 103 of money, the institution of banks, and otherwise, been materially modified ; see on this point Napier and Sutties, 22d July 1G69, M. 16280 ; Kintore, Jan. 1C65, M. 16272 ; Kose, 25th Fob. 1678, M. 16296 ; Charters, Jan. 1687, M. 16310 ; Wilson, 24th Feb. 1688, M. 16311, and 10th July 1688, M. 16312 ; Spalding, 19th May 1809, F. C. In Hamil- ton, 25th Feb. 1813, F. C, the first blow at the old system was struck, but Moutgomerie v. Wauchope, 4th June 1822, 1 S. 421, decided on remit from the House of Lords, is the ruling authority, Ealston, 3d Feb. 1826, 4 S. 425, 2. Fraser 115. The very first case, reported in the books on the interest due by factors under the Act of Sederunt, ignores the exist- ence of the enactment that interest was not to begin, until a year after recovery. In M'Kenzie, 19th Dec. 1818, F. C, a judicial factor was found liable by the Lord Ordinary in " interest at the rate of five per cent, de die in diem upon all sums which had come into his hands from the time he entered upon the management of the estate," but the Court altered to the extent of limiting the rate of interest to the bank rate, in respect that the retention of moneys in the factor's hands was owing to there being no bank within 60 miles of his residence, or within 120 miles of the estate over which he was judicial factor. Interest on the sums, in which the factor was debtor to the estate, was however given only from and after " twelve calendar months from the period when the same became due," and at the legal rate, in Cran- stoun, 1st Dec. 1826, 5 S. 57. There it was further found that the sums of money, principal and interest, in the factor's hands at the expiry of the factory, should be at that period accumulated into a principal sum to bear legal interest from that date, and that arrestments in the factor's hands did not interrupt the currency of the interest, or liis liability to pay the same. In the next case of Condie, 20th Nov. 1834, 13 S. 61, the factor was in the peculiar situation of having, in- N 194 USUAL OR COMMON LAW DITIKS, TOWEHS, &o. stead of monies in liis hands, l>oon in advance almost always for the estate, llr was held entitled to balance at tlir end of every year, and to accumulate the interest then due to him in a general balance, toward extinction of which, in the next year's account, tlie next receipts were entered. In very peculiar circumstances a factor was found liable in only 4 per cent., on a large balance he had retained in his hands pending the adjustment of his accounts, after expiry of the factory, in Roberts, otli June 1835, 13 S. 877. The same rate of interest was charged in place of the full legal rate against a factor on all sums retained in his hands in Lambe, 14th Dec. 1837, IG S. 219 ; and it was also found that in- terest and principal must be accumulated yearly. Five per cent., with annual accumulations, was what the factor was charged with in Blair, 4th July 1843, 5 D. 1315; and Buchanan v. :Mackersy, 13th Feb. 1847, 9 D. 700. The principles, on which an annual balance is struck in the accounts of a factor's management, are alike applicable to the accounts of the bank with which he deals ; and it is not known that any respectable estaldishnnMit ever denied its lial)ility so to account. However, it was deemed neces- sary in tlie Tupils Protection Act to have a ja-ecisc enact- ment on the subject, and although that act, as wo have seen, does not in its other provisions embrace all the officers of whom we are treating, this clause seems to be more ex- tensive, and at any rate, as it but expresses the obligation on bankers which the officers must all enforce, we quote it at length. It is the 37th section, and is as follows: — " From and after the pa.ssing of this act, every bank in Scotland, with which any money shall have been or shall ])o deposited or lodged by any judicial factor, tutor, or curator, or under autliority of any Court in Scotland, or with reference to any suit in any Court in Scotland, whether on deposit-receipt, or on account-current, or otherwise, shall once at least in every year accumulate the interest witli the priueipal sum. so that USUAL OR COMMON LAW DUTIES, POWERS, &n. 195 both shall thereafter bear interest together as principal ; and any hank faihng so to do shall he liable to account as if such money had been so accumulated." Interest at whatever rate comes only in place of profits on the sum on whicli it is calculated, and accordingly, where a factor had de facto made and received profits on the re- venues of the estate he managed, he was held bound to account therefor, Duke of Eoxburghe, 2d March 1824, 2 S. (Appeal Cases) 18 ; Guthrie, 16th Dec. 1853, IG D. 214 ; although in the above-mentioned case of Buchanan v. Mac- kersy, 13th Feb. 1847, 9 D. 700, the Court found the cura- tor's cautioner liable in only 5 per cent, on the funds he had employed in his own business. An officer, even after his office has expired, is bound to account for the estate until his intromissions with it cease, and to pay interest thereon ; Duncan, 20th Dec. 1851, 14 D. 313 ; Accountant of Court v. Wilson, 12th Feb. 1852, 25 Jurist 296. 4. Remuneration. — It is only by implication that the Act of Sederunt 1730 has any reference to the remuneration to which a factor is entitled. In section 4th thereof it is alluded to in connection with the penalty thereby imposed for his failure to lodge annual accounts, which the Court have the power of fixing, but " not being under an half- year's salary." Until of late years it would seem that there were few or no reliable data on which this salary could be fixed by the officer, and hence the practice arose of leaving it entirely to the Court, who, it will be seen from the decisions to be quoted, exercised a very wide discretion in this matter. A tutor got L.lOO added to his salary, in respect of the deductions which the Court felt themselves bound to make, in Drumelziers Tutory, 16th July 1680, M. 16300 ; and in the case of Lude, Jan. 1684, M. 16305, the Court allowed a n2 19G USUAL OR COMMON LAW nrTIKS, IMWF.RS, &c. tutor some stones of buttor yearly, as ho resided in a dilTorcnt sliire from tliat in Nvliicli the lands lie managed were located. There can he no legal hargain as to recompense for under- taking a tutory; Scot, 19th Feh. 17:^G, M. KkMI. Although a factor is entitled to enter against the estate in his accounts a sum hy way of salary or commission (as it is now usually termed), he cannot arbitrarily fix it, and the amount thereof is always subject to the approval of the Court ; Skirving, 27th Jan. 1829, 7 S. 320. The salary of the factor appointed by the Court on the Roxburghe estates was fixed at L.500 per annum ; Duke of Roxburghe, 2d March 1824, 2 S. Ap. 18. The commission sanctioned by the House of Lords in Morrison v. Rennie, 14th July 1847, 9 D. 1483, and 26th April 1849, 6 Boll's Appeal Cases 422, was at the rate of 5 per cent. The rates of commission allowed to be charged vary from 1 to 5 per cent., and even higher rates, on the amount recovered by the factor as curator bonis, and are fixed by the accountant to wlmm his accounts are remitted by the Court on a due consideration of the trouble the ofiicer has had in connection therewith. But although there is no fixed rate, 5 per cent, is the usual rate, and was what was given by the Court as such in Hawkins, 15th July 1847, 9 D. 1484. It is very evident that the circumstances of each case can alone determine the ninuueration to which the ofiicer is entitled. The rules wliitli tlio Accountant of Court has fixed, in regard to the commission he is in use to allow factors under the Pupils Protection Act, may in doubtful cases be referred to with advantage, in connec- tion \vith the general priiiciith-s above enunciated. From a factor's or curator />ow?Vs commission there will fall to be deductrd any commi.ssion lie has allowed to any other party for recovcriug ]»art of the estate ; Cranstoun, 1st Dec. 1826, 5 S. .'"»7. His commission is in lull of all work, i)ro- fessional or otherwise, done by the factor or curator bonis in connection with the estate ; Morrison r. Rcnnic, 14th USUAL OR COMMON LAW DUTIES, POWERS, &c. 197 July 1847, 9 D. 1483, and 2Gtli April 1849, 6 Bell's Appeal Cases 422. The rule was extended to the case, where pro- fessional work had been done by the firm of which the factor was a partner, by the whole Court in the case of Lord Gray and others, 12th Nov. 1856, 19 D. 1. The cases of Eobertson, 26th May 1843, 5 D. 1066, and Nicol, 4th July 1851, 14 D. 13, in the former of which the factor was an accountant, and had as such done accounting work for the estate, and in the latter the factor was a slater, and executed some slater-work on houses under the factory, are now overruled by the decisions already mentioned. Outlays are however allowed ; Yeaman, 18th July 1707, M. 16323 ; Morrison v. Rennie, supra ; Lord Gray and others, supra ; although in the case of Flowerdew, 22d Dec. 1854, 17 D. 263, outlays were disallowed. The expenses of legal proceedings, adopted with a view to the benefit of the estate, and disbursed by the factor, are allowed ; but where the factor gains his case and gets decree for expenses, the expenses therein he cannot charge against the estate, but must recover, Paul, 2d July 1841, 3 D. 1145 ; unless it be shown that he could not possibly have made the decree available to the estate, Kennie v. Morrison, 27th Jan. 1849, 11 D. 457. Where, in calling a predecessor in ofiice to account, proceedings were adopted wliich were beneficial to the estate and justified by the circumstances, the Court decerned against the predecessor therefor personally; Young, 24th May 1821, 1 S. 26 ; Myles, 6th March 1855, 17 D. 590. The expenses a factor incurred, in unsuccessful pro- ceedings as to the person of the ward, he was allowed to put to the debit of the estate in Johnston, 29th Jan. 1856, 18 D. 343. Where the parties who presented a petition and complaint against burgh-managers succeeded in getting their conduct disapproved of, they got expenses against the managers personally ; Greig, 11th Feb. 1842, 4 D. 662. Where a factor loco tutoris had given employment on busi- 198 LSLAL OK COMMON LAW DUTIES, TOWEKS, &c. ness of tlie factory, and the pupil and he unsuccessfully resisted the claim, decree for expenses was given against the ward and factor conjunctly and severally ; Orr v. Koss, IGth May 1822, 1 S. 386. The responsibilities attending the de- fence of actions are the subject of remark afterwards (p. 206). The particulars of all charges against the estate must be given. Thus a slump sum of tavern charges was dis- allowed until the curator should condescend on particulars, so that the Court might modify what was reasonable, in Tailfer, 23d Jan. 1677, U. 16293 ; see also Sandilands, 17th Nov. 1680, M. 16300 ; Wilson, Nov. 1683, M. 16304. 5. Penalties. — The Act of Sederunt (1730) which pre- scribes the duties of the factor has, in resjjcct of the import- ance of many of these, guarded against the neglect of them by the imposition of the penalties following, viz. : — (1.) Liability to removal on failure " in any part of the premises" (sec section 10), without prejudice to the other certifications of the act. (2.) Payment of double the amount of any deficiency in the rental lodged as aforesaid, and of any increase thereon omitted to be noticed afterwards when it occurred — section 3. (3.) A mulct for failure to lodge full copies of the con- firmed testament and eiks — section 7. And (4.) A mulct, not being under half-a-year's commission, for failure to render accounts annually — section 4. The Court removed a factor for contravening tlio Act of Sederunt of 22d Nov. 1711, which contained similar pro- visions to those in the Act of 1730, in Home, 6th July 1716, M. 4068. Where a judicial factor objected to the inter- locutor which the Ordinary had ad interim i)ronounced against him for a sum admittedly at the credit of the estate, because he was entitled to retain that or any other sum in USUAL OR COMMON LAW DUTIES, POWERS, &c. 199 security of his eventual claim to the expenses of process, as these formed part of the cost of the factorial management, the Court adhered iu respect that he had not lodged any account for twelve years back, and that hence his claims against the estate were very problematical ; Cranstuun, 10th March 1824, 2 S. 649, In the after adjustment of this factor's accounts, he was refused credit for any commission in re- spect of his disregard of the Act of Sederunt in the matter of the accounts, and an allegation that no loss had accrued through the omission was not listened to ; Cranstoun, 1st Dec. 1826, 5 S. 57. Parties alleging an interest in the estate under judicial management on one occasion presented a peti- tion and complaint to the Court during the course of that management, and they stated as their reasons for doing so that the accounts hitherto lodged by the factor were unintelli- gible and unvouched, and that he was overcharging his com- mission and embarrassing the winding-up of the concern with a view to the augmentation of his remuneration. The factor, in explanation, stated that the proper time had not arrived for fixing his commission, which was always open to modification, or even to be disallowed ; that his vouchers he was not required to lodge with the clerk, but they were always open to the inspection of all interested, and, indeed, he needed them for daily reference ; and that, as to the balance, he was ready to consign it ; but as he was about to pay several heavy claims, and the balance would be required for current expenses, and further, as he had found ample caution, he was entitled to proceed as hitherto in the discharge of his ofiicial duties. The Court refused the petition with expenses, holding that until some case was established against the factor they were bound to pro- tect him ; Dixons, 20th Dec. 1833, 12 S. 248. As regards the penalty of the Act of Sederunt for not lodging accounts, the minimum which the Court can inflict is thereby fixed at one half-year's salary ; but they have un- 200 rSl'AL OU COMMON LAW DITIKS, TOWERS, &c. limiteil ilismtion as to inllictinp; a larger penalty; Condie, 20th Nov. 1834, 13 S. Gl. In tluit case the factor had lodged some of his accounts properly, and as regarded the years iu which he had done so, his factor-fee was left untouched. The representatives of the factor, wlio died before discharge, attempted to maintain that tliey were not liable in the penal- ties of the act in resj)eet that these, as the conse(iuenc.e8 of the deceased's delict or rather quasi delict, did not transmit against his successors, but this was overruled. The prin- ciples which regulated this decision were affirmed in Lambe, 14th Ik-c. 1887, 10 S. 219; Accountant of Court u. Wilson, r2th Feb. 1852, 25 Jurist 29G ; Macdouald, 8th July 1854, IG D. 1023. But besides the forfeiture of commission, factors and curators bonis are liable to removal for failure to lodge ac- counts annually; Mackenzie, 1st March 1845, 7 D. 5G0 ; Stewart v. Court, 17th July 1847, 9 D. 1570 ; Stewart v. M'Given, loth Fe]>. 1852, 24 Jurist 233. Although, of course, the power of removal falls l)y the cxi)iry of the office, yet, until discharged, the Court have juri.|ili<'ii1>lo to " nno major [MTHf-wand ajjniiiHt ano minor," is RtnUd wit)) ^T< at U ("OMMON LAW DUTIES, POWKKK, &i: are to be charged against the estate. At the couclusiuu of last cliapter the subject is fully discussed. Distinctive Features of some Factorial Appointments. 1. The Curatory of a Minor Capax. — The distinctive fea- tures of this oflice have been to some extent noticed in our first chapter. Tiiey arise from the rights and position of the minor ward. The curator bonis to a minor capax has sometimes been termed a factor loco curatoris, and he occu- pies the same position as regards the minor as a curator at common law does, because, as we have already seen, " the nobile officium of the Court is never at variance with the law;" Graham, 8th Aug. 1780, M. 8934, Ilailes 8G0, and 5 Sup. 635. What the law on this point is we shall briefly state, as the considerations thence arising have very often been lost sight of by the Court in dealing with such curators, and hence many decisions irreconcilable with the law of curatory are found in the books. Some of these we had oc- casion to notice in our first chapter. After thirteen years complete a minor's person is free, " albeit it be utherways tuiching landis, guidis, and geir, the keeping of which onduris quhill his perfect age," Newtoun, 27th :\Iarch 1533, M. 1(;21.S ; Matliersone, 2Gth March 1534, M. 16218; Kincaid, 2.1 Dec. 1561, M. 10228; or in the case of a female minor until her marriage, Sinclair, 19th Feb. 1564, M. 16229. If an appointment be made by tho Court because the testamentary tutor is under age, it expires when he becomes of age; Findlater, 1st June 1565, M. 16230. Curators arc appointed to a minor " for gnyding and reulingof him be their counsall, assistance, and defence in quhatsumover his actiounis and business until hispcrfyte age of 21 zeires;" Balf«»ur in his report of Ileriot, July 1564, M. 1G229. Accordingly, a curator cannot discharge the minor's debts, but only consent to his discharging them, USUAL OR COMMON LAW DUTIES, POWERS, &ower to collect and receive the whole tolls and revenues exigible under statutory authority over the whole length of the line USUAL OR COMMON LAW DUTIES, POWERS, &r. 233 of the Wisliaw and Coltness Eailway and its l^ranches, pay- ing therefrom the sums necessary for the ordinary working of the said line, and other costs and charges, as authorized by the provisions of tlie statute, as the amount tliereof shall be agreed on, or in case of difference shall be fixed by the Court/' With the view of better carrying into effect the general declaration of the statute as to the party for whose behoof tlie factor was so appointed to receive the said monies, the Court in that case ordained " the amount of the tolls and revenues, hereby authorized to be collected and re- ceived by the judicial factor, in the meantime to be weekly lodged in the Koyal Bank of Scotland, subject to the legal claims of those interested therein, and in whose favour any order for payment may be made by this Court, upon due application in competent form, or in any competition that may be instituted in regard to the said tolls and revenues." While it is doubtful how far, under the Companies Clauses Act, the Court were entitled to make provision for payment out of the funds collected of any claims but those of the petitioners, there were in that case special Acts which, in order to provide for preferable creditors, enacted that a factor was to be appointed " in the manner, or as nearly as may be in the manner, provided" by the Companies Clauses Act. We took occasion to discuss this subject in our pre- vious chapter, while treating of the parties who could peti- tion for such statutory appointments. Factors, under the late Bankruptcy Act, 19 and 20 Vict., c. 79, on the estates of parties deceased, are (§ 164) to have power to " manage the estate, recover debts due to it, realize the moveable effects by public or private sale as may be most expedient, " and " dispose of the heritable estate by public sale or private bargain, according to such directions as the Court, on report of the Accountant, may give." The powers hereby conferred do not require, in order to tlieir exercise, to be justified by a legal necessity, but merely by 234 USUAL OR COMMON I, AW lU'TlES, POWERS, &c. considerations of expediency ; ]\rackay, 10th Feb. 1859 (not yet reported). Tlie statute furtlirr enacts, tliat tlic factor "shall apply the free proceeds, after defraying all expenses, in payment of tlie claims of creditors, according to their several riglits and preferences, conformaldy to a state of funds and scheme of division, to he prepared by him, and considered and ai)proved of by the Court, on a report by the Accountant; and thereafter the factor shall account for the residue, if any, after j)ayment of debts and expenses, to the parties having a right to the deceased's succession." The powers thus conferred seem identical with those possessed by fac- tors under the Act of Sederunt 1730 ; but the obligations, under which they are laid as regards accounting, more nearly resemble ^vhat have l)een imposed by the Pupils Protection Act on factors loco tutovis and curators bonis ; see supra, p. 200. In regard to the heritable estate, special authority for its disposal must be sought, as we shall imme- diately sec is the case with all judicial officers holding com- mon law appointments ; but the Act seems to recognise ex- pediency as a sufficient ground for the officer's special inter- ference, instead of requiring him to make out a case of " legal necessity," as the Court demand in every other ap- plication to them for special powers at common law ; ^laekay, 10th Feb. 1859, supra. An Act of Sederunt with reference to such factors was passed on liTlIi Kov. ISoT, and will be found in the Ajipemlix. It contains the best exposition of the duties of a judicial factor with which we are ac(]uaintcd ; and, as the directions therein given are nearly as applicable to factors at common law as under the statute, it is a very valuable contribution to the subject of which we arc now treating. In fulfilment of the srjiomo of this chapter's contents which we announced, the subject now demanding consider- ation is that u{ sprrinl or rxfraorrlinnrif povcrs, duties, and Uiihilitirs. We have already seen (p. 2'22) tliat they will not SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &f. 2B5 be granted on appointment. Applications for special powers cannot competently be made to any inferior court, but must be presented to the Court of Session ; Eobertson, 28th May 1814, F. C. The granting of any special authority by the Court does not in any way relieve the officer obtaining it of the responsibilities which would otherwise attach to his acts. " The Court never direct their factors to do anything but only authorize, in order that they may not interfere with the discretion and responsibilit}^ of their officers ;" Mathieson, 26th June 1857, 19 D. 917. The necessity for this will appear, when it is considered that such applications are all made ex parte, and that, if granted at all, they are so for the most part in absence of any contradictors ; Craigie, 10th Jan. 1758, IM. 7455. Were the check thus imposed re- moved, there would be no end to imposition on the Court ; and applications for special authority would be presented with no other object than release from the obligations and responsibilities voluntarily undertaken, by acceptance of the office, in respect of remuneration therefor. Applications for special powers by factors are rather to be viewed as the publication, to the Court, and through them to the public and all interested, of their intention, after mature delibera- tion, to take certain steps with reference to the estate they have been appointed to manage, and in this view the Court have rather encouraged their officers to make these applica- tions, before taking such important steps as are often in- volvx^d in implementing decrees in actions, electing betw^een provisions, selling parts of the estate, &c. An officer of Court is, as we have seen, appointed with the view of doing no acts but those of necessary adminis- tration (Colt V. Colt, 3d July 1801, Mor. Die. Appendix, voce Tutor), although his position gives him, unfortunatel}^, the opportunity of doing other acts, for which he has no better ground than a fancied and temporary expediency. With the view of assisting in collecting the proper elements 236 SPECIAL OR EXTRAORDINARY DUTIES. PoWKKS, &«'. for determining tlie necessity of any oxtraordinury acts, and very often of giving expression to their own opinion, as well as of raising a personal exception against possible objectors, tbe Court liave encouraged their officers, in- tending some such act, to use judicial forms for making parties cognisant of tlieir intentions, and for obtaining and preserving materials for the vindication of their con- duct, should it be afterwards challenged : beyond this, the Court have, as we think can be satisfactorily shown, never intentionally gone, although there exist (h'cfa capable of another construction. Thus Avhere steps had been taken to obtain authority from the Court to a perpetual feu of a pupil's estate, to which all parties known to be inte- rested in his succession w'cre called, the pupil was found afterwards entitled, not only to intent reduction of the transaction, but to succeed in setting it aside, although his guardian had proceeded upon views of probable advantage to the estate, which, however, were not sustained on re- examination ; Vere, 29tli Feb. 1804. ]\1. 10389. In a case of older date, where the guardian had, while abroad, insti- tuted proceedings before the Court, and got a precognition or proof led therein, and they had acted in conformity there- with, their actings were challenged, but sustained after exa- mination of the circumstances ; Lord Oxford, Jan. 1684, M. 16305. Lord Corehousc, in the case of Milne, 10th June 1837, IT) S. 1104, remarked, with reference to the misunder- standing which he thought the practice of granting s])ecial powers likely to produce, that "it is understood by the Court, and mu.'^t be understood by the country, that the judicial far-tor is not exoncred of responsibility by obtaining the sanction of the Court as now jnayed for." AVhere the Court were so satisfied of the advantage of a transaction for the sale of the heritage of the pupils as to authorize it, they did so under a reservation of the heir's rights, and of the privilege of collation, and all others competent, in like SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 237 manner, as if the transaction had never been gone into ; Donaldson, 8th March 1838, 16 S. 813. The Court having been asked, besides granting authority to the factor to exe- cute a deed, to declare it to be good and sufficient, refused to do so, as the validity of the deed was for the considera- tion of the grantee alone ; Wood, 6th March 1855, 17 D. 580. Although the Court grant the power, it does not necessarily grant a good title, — was a remark of the Lord President in Auld, 5th Feb. 1856, 18 D. 487. We saw, supra, p. 179, that a judicial guardian cannot, more than any other, change the character of the minor's or incapable's estate quoad his succession, however he may change the securities ; and of this doctrine any other view of the sanction or efficacy of special powers by the Court, than that we have stated, would be subversive. The fact of the Court's knowledge that granting special powers was often a mere matter of form, and at any rate could in no way compromise the rights of anybody, can alone account for their having gTanted powers in very many cases where it was wholly unnecessary for the officer to seek them, as he possessed them as usual and ordinary powers. Accordingly, we find the Lord President, in an application regarding the conversion of a track of hill-pasture into a planta- tion, and the erection of a fence round it at a cost of L.20, remarking — " What were matters of general management some years ago, are now matters requiring special autho- rity !" Esson, 28th Feb. 1856, 18 D. 676. In the above- mentioned case of Mathieson, 26th June 1857, 19 D. 917, the factor, although he had, under the Act of Sederunt 1730, the power of realizing the moveable estate with a view to the investment of the proceeds in heritable securities {supra,^. 168 ; Keegan, 6th Feb. 1857, 19 D. 382), having en- countered some difficulties in dealing with some stock in an English company, applied for and got authority from the Court in reference thereto. 238 SPECIAL on KXTIIAORDINAFIY DUTIES, TOWKIIS, &*'. It lias been thoujxht very generally that all doubts, as to the efl'ect of the Court's interposition by granting special powers, have been solved in a manner the opposite oi" what we have indicated in the case of Maconochie, 3d Feb. 1,857, r.» 1>. :{6G. Now, the only question raised there was as to the compttency of tlie Court's interfering at all. " The term competency" Lord Deas remarked, " is used in reference to such applications in a peculiar and perhaps not very logical sense — embracing not the mere abstract nature of the appli- cation, but the circumstances in which it is presented. These circumstances may, and generally do, require to be ascertained by inquiry before the competency can be de- cided." " To a description of these circumstances I can approximate no nearer than by saying that they must amount to a legal necessity ; words which I am very sensi- ble may in themselves require definition, but which it would not be easy, and is not hero necessary, to define more pre- cisely than Ity giving instances both ways." Holding, as is quite right in principle, that the property under the man- agement of the officer is in manihus curia-, and that his acts are to be viewed as the acts of the Court (who, however, are irresponsible while the officer is not so, cither as regards tlicm or any other party), Lord Neavcs thus stated his views, which are fully concurretl in by tlie majority : — " It is (juite fixed that the Supreme Court can interfere, by the appoint- ment of a factor or curator to manage the property of inca- pable persons who arc otherwise unprotected. But con- fessedly, the foundation of that interference is necessity, and it appears to me that necessity should also be the measure of the interference." " It is a known jjiinciple in the law, that necessity creates powers of administration which do not otherwise exist. Thus a shipmaster, who is only an in- atitor as to the ship, and who has no administration at all as to tlie cargo, may sell or hypothecate Ijoth where the owners are absent, and where a case of necessity arises. SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 239 though without such necessity he could not do so. On the principles now indicated, it seems clear that no case of mere eligibility or expediency, no desire to make profit, and even, I think, no wish to avoid inconsiderable loss, will justify or give jurisdiction to the Court in such a matter/' " I do not believe that the principles now stated are substantially different from those to which the Court have generally looked in their past decisions. They may sometimes have stretched or misapplied them ; and it was natural, when the cases were ex jparte, that there should sometimes be a want of precision or strict attention to distinctions in the judg- ments pronounced." " But when the question is delibe- rately raised, I cannot help thinking it in perfect accord- ance with past decisions, as well as with correct principles, that the essential difference between necessity and ex2:)ecU- ency, in respect of the power of interference, should be ex- plicitly put forward in the Court's deliverances." These quotations may suflBce to show that the opinions in Maconochie's case do not touch the i)oint as to the responsi- bility of the factor, when he acts in the exercise either of his ordinary or extraordinary powers, and in the latter case with or without special authority from the Court. In either case his responsibility to all concerned remains ; but it is evident that the obtaining the Court's authority is attended with no slight advantages, even in respect of the particulars we have already noticed in detail. The principles which the Court have enunciated as guiding them in authorizing any act, are those which ought to guide the factor in every act of management, no less than on those extraordinary occasions on which he can avail himself of the privilege of resorting to the Court for advice and assistance in the per- formance of his duties as their servant. In the case of Maconochie, Lord Ivory, while concurring iu the opinion from which we have just quoted, alludes to the /orm in which the Court should be approached in an 2-lU SPKCIAL OR LXTUAOKDINAUY DUTIES, I'OWKUS, &('. application fi»r their juilicial interposition, eitlur by way of siimiiuni/ petition, or in the shape of an ordinary action of cognition or tlie like, formally calling as defenders all parties interested ; and his lordship ventured to suggest, as matter for consideration, how far the more recent practice of proceeding in the former course has yet accjuired such a degree of consistency and strength as tu overcome the older authorities, which are wholly in favour of the latter. Lord Deas in a previous case, White, 7tli March 1855, 17 D. 602, had remarked that in the action of cognition and sale, to which all parties interested were called, the whole heritable and moveable estate of the ward, and the whole debts due by liim, wore condescended on, and the necessity for the sale was generally established by showing that the interests of the debts exceeded the income of the estate. In cases of that kind, his lordship continued, if the same par- ties be called, the same investigation made, and the same precautions taken, there may be uo objection to arriving at the same result in the less expensive and more expeditious form of a summary application. This variation in form has not affected the responsibility of the party instituting the proceedings, although the formality of an action was better fitted to impress the probable consequences of the stej) ho took ; Somcrville's Fa(!tor, Oth Feb. 1836, 14 S. 451. The Court were hence very nuAvilling to sanction the change ; and so late as 1820 (Warden, 7th July 1829, 7 S. 848), the Court refused to entertain an application by a factor loco tuforia in the form of a petition, and superseded il lill a de- clarator should be brought. In Beatson, 24th Feb. 1810, F. C, a petition was refused; and in Finlay.son, 22d Dec. 1810, F. C, the furm under whirh the special powers were brought before the Court was an action ; and also in Eaton v. Cowan, Oth June 1826, 4 S. 605, aff. 4th July 1828, 3 W. and S. 246. Fomitainhall rfi»ortH a case of a summary petition for authority to sell a pupil's lands, in which the Lords found SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 241 that minors' lands could not be sold judicially, but upon a cognition and trial, comparing the rental with the debts, and that by way of process only, and not summarily on a bill. They thought the drawers of such petitions, " con- trary to our fixed stiles and customs," deserved to be repri- manded and rebuked; A. v. B., 16th July 1706, M. 14966 ; Maxwell, 11th Feb. 1747, M. 16352. It would seem that, for the sake of principle, the anomaly was tolerated of hav- ing to apply for authority to lease a cotton-mill, for a term of years beyond pupilarity, in the form of an action of cog- nition and sale ! Hallows, 1st March 1794, M. 14981. The innovation of the summary application was first tolerated in regard to an estate which previous to tlie factor's appoint- ment had been sequestrated, the rationale of the decision being thus expressed : — " No process but only a petition or bill necessary where subject is in manu cwim by sequestra- tion ;" Earl of Galloway, 18th June 1747, M. 7438. As not only a sequestrated estate, but every estate under judicial management is in manihus curiae, the profession have ex- tended the use of the summary form to every case. The procedure in the old action was very similar to that in the modern petition. A detail of it is found in the re- port of the case of Colzean's Tutor, 5th Feb. 1670, M. 16282. There the tutor cited the nearest of kin of the pupil to hear and see it found and declared that the lands were set too high, and could not be kept at these rates, and that the tenants were in arrears before his tutory in great sums, which, if he should exact, the lands would be laid waste. There was no appearance for the defenders. A commission was granted to certain gentlemen in the neighbouring county to exa- mine and report ; and they accordingly did report that seve- ral rooms were too high let, and also what sum ought to be discharged to each of the tenants in arrear, to enable them to pay rent and labour the ground. This report was ap- proved of, and decree was granted as craved, but under two Q 242 Sl'Kc lAI, oK KXTltAoHUINAUV lil TlIS. TOWERS, &f. qualiticati(ms, viz., — 1st, That (lie I'uvsiu r was to dificlmrge nothing s//?j/)/iV?7rr,l)iit only till the piipilarity was past, that the pupil and curator.'^ niii;ht then do as they choose ; and 2d, That the lands were to he let, only after due intimation, and by public roup, not under the rate reported. Thus it is seen that, under tlie old funu of an action, no more relief from responsibility was accorded to the Court's officer tban under the new form of a summary application, and that it yielded no greater protection to the estate, is shown in Eaton v. Cowan, 9th June 182G, 4 S. 695, alf. 4th July 1828, 3 W. and S. 246. The officer of Court was the only party who liad a title to pursue a cognition and sale ; the remedy appropriated to creditors being another action entirely — a ranking and sale. As we saw in our last chapter, the number of parties who can apply to the Court by petition is not so limited. The only condition annexed to summary applications by credi- tors or other third parties is, that they must apply to have the special auth(»rity granted to the factor, and not to them- selves, perhord Curriehill in Maconochie, 3d Feb. 1857, 19D. 360, as he is the only party to whose responsibility in the mat- ter the Court can look. Hence a factor can bring a ranking and sale under the Act 1695, c. 4 (Paton,24th .Inly 1785, M. 4071), if he prefers that course to an application for special power to sell, a proceeding which we are now to consider. As has been already shown (siijirn, ]^. 166), the ordinary management of the factor does not include* a jiower of alien- ation of the heritage, including therein the granting of leases and obtaining of loans ; and even in <<«nipnrison with the other special powers, which the Court have been in the habit of granting, it is one which it requires very special circumstanres to justify. Thus, where a factor got, at the time of his appointment (an unusual thing as explained, ftuprn, p. 222), power to complete bis pupil ward's title, the Court refused on tho same groiinds to authori/.r him to SPECIAL OK EXTRAORDINARY DUTIES, POWERS, &c. 243 sell ; Montgomery, 29th Jan. 1839, 14 F. 487. The Court was asked to authorize the sale by tutors of a laboratory which they could not continue, and granted decree as craved in Plummer, 8th March 1757, M. 16358. In the next case, " the Lords, in respect that the contract libelled is an act not of necessary administration, but of discretionary power, exer- cised on the part of the tutor in the view of ultimately pro- moting the benefit of his pupil, found the action incompe- tent, and dismissed the same ;" Colt, 3d July 1801, Mor. Die. App., voce Tutor. There the Court laid it down that the alienation of minor's heritage could receive their sanction only in three cases : — 1st, Where the sale was for payment of debt ; or 2d, Where it' was for minor's aliment ; or 3d, Where there was urgency to avoid loss ; but that even, as regarded these situations, the Court and the guardian could not in law do anything but acts of necessary administration ; see also Vere, 29th Feb. 1804, M. 16389 ; and Finlayson, 22d Dec. 1810, F. C, In the winding up of the estates of a partnership, a factor will get power to expose and sell the heritable property by public roup under articles fixed by the Court, as they can be reckoned as nothing else than so much of the assets of the company ; Fullarton, 19th June L834, 12 S. 750. Where the sum necessary to repair a property was disproportionate to its value, and the free rental would be in- adequate to the support of the lunatic, the curator bonis was authorized to sell it ; Finlayson, 4th June 1835, 13 S. 861 ; and with the proceeds to purchase an annuity ; 16th Jan. 1836, 14 S. 219. The factor on an intestate estate, which consisted in part of a personal right to certain unfinished houses, was empowered to sell the right by public roup, as he had no means of finishing the houses, and by remaining unfinished they were exposed to deterioration. On account of the urgent circumstances of this case, a remit by the Court to the Lord Ordinary to examine and report (the usual course adopted) was dispensed with, and the prayer was q2 24i SPKtIAL OK KXTUAOUDINAKV IHTIIS, I'OWEUS, &c. granted in respect of a report and certificates obtained and produced by tbc petitioner; Fergusson, 14tli Jan. l8oG, 14 S. 213. Tlie factor on a trust-estate, of ■Nvhich a number of ruinous houses formed a part, but these valueless houses were above a valua])le bed of clay, api)lied and got the Court's sanction to his removing the houses, selling the materials, and realizing the value of the clay ; Cleugh, 17th July 1841, 3 D. 12G1. A factor on a trust got power to realize the estate by a sale, but it was ordered to be by pub- lic roup; Arthur, 30tli Juno 1846, 8 D, 943 (see case of Auld, infra). AVlicrc the lunatic's estate was evidently inadequate for lier support, her curator got power to rea- lize what of the heritage required to be sold, in order to purchase an annuity for licr ; Junes, 17th July 1846, 8 D. 1211. Again, where it was the only wa}' of getting a sur- plus of the estate, after payment of creditors, for the lunatic's maintenance, authority to sell by public roup was granted ; Dunbar, 7th July 1847, 9 D. 1426. Authority was granted to a factor on an intestate succession to sell property to dis- charge debts in ^lelville, 8th March 18o0, 12 D. 914. Where the ward was approaching the age when she would be able to act for herself, the Court refused power to sell, Scott, 21st Feb. 1856, 18 D. 624. The Curt will not sanc- tion sales by private bargain ; Arthur, 30th June 1846, 8 D. 943 ; Auld, 5th Feb. 1856, 18 D. 487. The realization of the heritable estate being the only means of preventing the estate from being swallowed up by the diligence of creditors, and the heritage being of such a character (a horse-bazaar) as it was not desirable to hold, unless the proprietor was himself carrj'ing on tin- business for whifh it was adapted, pf»wers of sale by itulijic rouj) were granted to the factor /oco futon's ; Wood, 16th March 1856, 18 D. 732. The lunatic's interests being those to which the curator and the Court will primarily attend, and a sale of the estate being the only remedy f*tr an insufTicicnt income Sl'EClAI. OR EXTRAORDINARY DUTIES, TOWERS, &,:. 245 available, authority to sell was granted after a proof for hotli parties, although the next heir opposed ; Lindsay, 17th Feb. 1857, 19 D. 455. Where a property was substantially sold by the pupil's father before his death, the factor loco tutoris got power to convey on payment of the price, as thus expensive proceed- ings by the grantee would be obviated ; Crighton, 13th Feb. 1857, 19 D. 429. Where the lunatic's predecessor had granted obligations to feu, the curator bonis was authorized to grant feus, Hawkins, 24th June 1848, 10 D. 1408 ; and where the commissioner of the incapable, under authority formerly given, had sold his estate, the curator bonis afterwards appointed was authorized to adopt the transaction, and to grant a disposition of the estate to the purchaser; Allan, 10th Feb. 1854, 16 D. 534 ; see also Alexander, 26th June 1857, 19 D. 888. The Court in the case of Howe, 12th Feb. 1859, 21 D. 486, where a father had purchased before his incapacity a cadetship in the Indian service for his son, sanctioned his curator bonis paying the expense of that son's outfit, as they were only carrying out the enixa voluntas of the father, and otherwise the appointment would have been lost. There were other members of the family, and as regarded their interests in the estate, it was a benefit not to throw away the money already expended in the son's education and commission. There were ample funds, and no realization of estate was necessary ; but the principle of the decision would seem to warrant the Court authorizing a sale where that step was necessary to provide funds. That case oc- curred under the Pupils Protection Act, which, it will be re- membered, authorizes the granting of certain special powers upon considerations of expediency. We have already {supra, p. 166) seen that there are some obligations incurred by the ward's predecessor which the officer needs no special power to fulfil. The line between the two classes it seems im- possible to draw distinctly. 24G Sl'KClAL OK EXTKAOUUINAUY DITIKS, PoWKItS, &('. Alienation of tlie estate may be rendered necessary l>y the decree of a competent Court at liona- or al>road ; Imt the questions in connection with tliis brunch of the subject are the subject of remark under ai>plications for power to im- plement decrees, infra. A factor loco tutor is, with reference to the completion of a building speculation in wiiich the father of the pupil had engaged, asked power to borrow money in order to complete the buildings, or to sell them as they stood. The Court autho- rized a sale by public roup, as they thought, if they allowed money to be borrowed, the matter became a species of ad- venture upon which it was perilous for their officer to enter. Besides, the speculation might have been a very good thing for the I'upil if she had anything else to fall l)ack upon for the present, but she had nothing else to depend upon, and in the event of the speculation proving a failure she would have been beggared ; Kirkland, Gth June 1848, 10 D. 1232. On the other hand, in a case wdiere the father of the pupils (two sons) had contracted for the erection of houses on a property which belonged to him, and they were un- finished at his death, their factor loco tutor is applied and got the Court to sanction the fulfilment of the contract for their completion, and his making the necessary payments thereanent, and also to authorize him to borrow, if that were necessary, a certain sum on the security of the pupil's heritage; Tweedir, ICth dan. 1S41, 3 D. 361). In the same way, the curator honis of a lunatic, who was tho last heir of entail of the investiture, in consequence of the benefits to be derived from his implementing the stipulations in a lease by his predecessor as to advances for improvements, and as he had no otlur way of raising UK'uns, was allowed to borrow the necessary sums, and to grant bonds and dispositions in serurity therefor over the estate ; Hood, 0th Feb. 1850, 12 T), 1)14. Where borrowing was the only means of saving the pupil's estate from bring toni to picros liy the diligpiirr of Sl'EC'IAL OU EXTRAOIIDINAUY DUTIES, TOWEUS, &c. 247 creditors, the Court sauctioiiod the obtaining a loan on it ; Somerville's Factor, 6tli Feb. 1836, 14 S. 451 ; Wood, 13tli Feb. 1857, 19 D, 428. A curator bonis, being pressed for payment of the lunatic's debts, asked power to sell or borrow on the heritage to pay them, and he was empowered in pre- ference to borrow the sum necessary ; Stott, July 1849, 11 D. 1495. Authority to borrow was refused to the curator bonis of a lunatic in Henderson, Jan. 1803, M. 14982. Where the ward's only heritage was a woodyard, the price of which was to be paid in seven yearly instalments, of which two had been made, and on failure to pay any of them the seller had power to rescind, money was allowed to be borrowed thereon to prevent the subjects being irritated, and in respect of a desirable offer of lease for a long period ; Borthwick, 7th June 1832, 10 S. 620. Where the pupil was next heir to an entailed estate of L.800, but had no funds for his mainte- nance or education, the factor loco tutoris was empowered to insure his life for L.500 against that of the heir in possession, and immediately to borrow one-half of that sum on the security of the policy ; M'Gruther, 27th Feb. 1835, 13 S. 569. Money was raised for the same purpose, but in a slightly diflfereut manner, in Miller, 26th Nov. 1836, 15 S. 157. There the pupil was also presumptive heir of entail; but the liferent of the heir in possession having been attached by creditors, he was unable to support the pupil. Her factor loco tutoris, as she had no other means of obtaining main- tenance and education, was authorized to purchase an an- nuity for her during expectancy, and to grant a security for the consideration therefor over the rents of the estate, which might become payable after her accession and during her life. Where, on the other hand, the factor had ad- vanced and expended L.lOO in the maintenance and educa- tion of his three pupil-wards, he was allowed to borrow the amount on their heritage, and to grant the necessary secu- 248 SI'KCIAL OR EXTKA0!:L>INAHY DITIES, POWERS, .^c. ritv, aiul tu iijijdy the sum to be received in liiiuidation of bis advances ; Agnew, 8tb June 1837, lo S. 10U4. Tbis bowcver seems, on tbe principles wbieb bave always at- tacbed suspicion to transactions between tbe guardian and ward, and wliicli are noticed in a jirevious jiart of tbis cbapter, to be a very doubtful precedent. Tbe proceeding would not relieve tbe creditor from tbe obligation of prov- ing tbat tbe sum be lent was applied in rem vcrsum of tbe pui>ils, in tbe event of tbe transaction being afterwards cball.ngcd ; Grabam, 31st Jan. 1735, M. 1G339. Wbere no otbcr way of raising funds to meet tbe lunatic's debts could be suggested, ber curator bonis got power to borrow on tbe security of bcr beritage ; ]\Iackenzie, 18tb July 1848, 10 D. 1493. A lunatic's affairs were in so bad a state tbat tbe curator bonis bad to compound witb tbe creditors, who were tbreatening diligence, for 15s. in tbe pound, and immediate payment. lie was authorized to bor- row, on bis ward's life-interest in an estate and on a policy of insurance, coupled witb tbe security of some of bis friends, the sum necessary for payment of tbe composition to those wlio had accepted of it, and for payment of taxes, expenses of management, premiums on policies, and composition to the creditors who bad not then claimed ; Campbell's Curator, 11th Dec. 1851, 14 D. 312. A lunatic heiress of entail held her estate without any imiliiliitidn to burden for debt, and iier curator bonis, as he could not let a farm to advan- tage without rebuilding a farm-house and repairing tbe oflRccp, and considering that her personal funds should not be thus applied, but tbat the heirs of entail, wbo were not lier successors, should be sulgected in tlie burden, applied and got power to borrow the necessary suu) over the en- tailed estate; Robertson, 1 Itb July 1855, 17 l>. 11 U). The subject of tbe Court's authorizing tbeir officers to contract loans was fidly considered by the whole Court in Maconochie, 3d Feb. 1857. \U ]). 300 ; and altbougb tbey SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 249 did not doubt the Court and the factor's power to make the estate in manihus curice liable for sums borrowed under the pressure of necessity, the circumstances wore not in that case such as to justify the Court's authorizing the loan pro- posed. A case of necessity was, however, held to be made out in Wood, 13th Feb. 1857, 19 D. 428, where the creditors of the pupil's father were about to adjudge, and their factor loco tutoris was accordingly authorized to borrow a sum sufficient to discharge these pressing debts. The case of Thriepland, 7th June 1848, 10 D. 1234, in so far as it relates to power to contract a loan, seems hence to be of very doubtful authority, and the Court, when the ques- tions, to which the exercise of the powers thus obtained led, came before them in the shape of an action between the heir and executor, as to the former's right to relief of the burdens which the curator bonis had entailed upon the heritage, took occasion to indicate strong views on the point. Lord Ivory remarked in that case (Moncriefif v. Yeaman Miln, 16th July 1856, 18 D. 1286), " If the a^jplication had come before the Court now as upon a matter of necessity, it would nut have been entertained, however much temporary relief to the lunatic proprietor might have been given" ; and the Lord President said that, " looking to that application, I cannot say that it would have suggested to my mind a case of neces- sity : it is much more like a case of expediency." The luna- tic there had large personal debts, and the curator was allowed to borrow a sum on her heritage to pay them off, as he could obtain the loan at a lower rate of interest than was payable to the creditors, and on terms in other respects more advantageous for the estate. Now, these are exactly the circumstances which Lord Neaves, without reference to the case of Thriepland, in his opinion in Maconochie's case, selects as illustrating the total want of the only element which the Court can recognise — necessity in contradistinc- tion to eligibility ; MuUer v. Dixon, 11th Feb. 1854, 1"6 D. 250 SPECIAL UU i;XTUA(iUl>INAKV 1>1 TIKS, I'DWKU.S, &i\ o3G. His lordship remarked — " Generally, I may say, that I think a very special case needs to be made out before sanrtioniii:,^ the conversion of jjcrsonal into heritable debt, under whirli there is still a personal creditor entitled to de- maud payment, and to adopt all legal diligence, uith the advantage of having a real security over the estate in addi- tion. An heritable security may bo more easily transferable than a personal debt ; but this will depend t»n eircumstances, and particularly upon the power wliicli the heritable security confers on the creditor." " Even in eases where I consider it competent to authorize an heritable security, I doubt the competency, and I have no doubt of the inexpediency of granting to the heritable creditor a power of sale, especially if that power is to extend over a much larger portion of pro- perty than will be sufficient to pay the debt. I think it would be better for the Court themselves to sell in such a case, when they would have an opportunity of determining how much and what part of the estate should be sold. To delegate this power to a heritable creditor seems extremely questionable, and more than (questionable, if the security and power of sale arc to embrace the whole or a large part of the estate. Possibly the want of such a power of sale may make the security less marketable, and not much more eligible in some circumstances than a personal ground of debt. But I regard this consideration as one of very inferior importance." Lord Curriehill had previously explained that in his opinion the creditors of the lunatic, while they are left at full liberty to resort to their legal remedies in order to obtain payment, it the irii.irdinn docs not provide funds for tliat purpose, are not entitled to hiive any addi- tional powers conferred on themselves. Such powers are granted, not as a ])rivileg«! to the creditors of the ward, but only in <.iilor to save the ward from the loss inip( udiug over him from these creditors resorting to their legal remedies. Those views derive support from the f'jut of a heritable SPECIAL OK EXTKAORDINAKY DUTIES, POWERS, &c. 251 creditor having been challenged, in the attempt to sell under a security, by an officer of Court — a curator ho7iis to a party ■incapax, — and the note was passed to try the question whe- ther such an officer could grant a bond with a power of sale in favour of the creditor; Stewart, 14th Nov. 1849, 12 D. 73. The question does not seem to have been decided in that case, although it is one of considerable moment to many in the situation of creditors in such securities. The curator bonis for an heir of entail asked in one peti- tion for power to grant leases, to expend the sum of L.3505 in improvements, and also to borrow that sum from the Lands Improvement Company under their Act 16 and 17 Vict., c. 154, § 26 ; and the Court, while they were satisfied of the necessity of granting the two first powers, and did so grant them, refused to authorize their officer to contract the loan, as the Act of Parliament referred to gave him sufficient power to do so — if, as he held, he was within its scope, and their doing so would only be a work of supererogation ; Stuart, 17th July 1857, 29 Jurist, 483. Power to let subjects under their charge is, to a limited extent, one of the ordinary powers which the Act of Sede- runt 1730 entails upon factors the duty of exercising. The extent of that power we have already discussed (su]jra, p. 183), but as the duration of such leases depended on uncer- tainties, and were reducible quoad the period beyond that for which they could be competently granted (Eoebuck, 6th March 1761, M. 16387 ; Home, 7th March 1793, M. 16382 ; Reay, 5th Feb. 1800, M. 16385 ; Colt, 6th March 1800, M. 16387), it was hoped, by obtaining the Court's authority, to avoid these dangers, as confessedly they were not so ad- vantageous for the estate as regular leases for the ordinary periods. But there was not the urgent necessity, which was held to warrant sales and loans, to justify the Court in countenancing the endeavours of their officers in this direc- tion, althougli, where they were prepared to take their own •>■-.') Sl'ECIAl. OU i;XTRA01tDlNAiiY DL Tlllb. I'UWEUS, &f. share of responsibility (see Reay, siipra), it would have been thought uureasouablo in the Court to refuse to recognise the officers' zeal in entloavouring to make the subjects under their charge sources of as much profit as possible to their ward. There was tliis satisfaction, however, that, in sanc- tioning leases, the Court and their officers were making only a temporary alienation, except in the cases of minerals, which arc 2^cirs fundi, although treated in other respects as sources of annual revenue to the proprietor of an estate ; Muirhead V. Yuung, 13th Feb. 1858, 19 D. 592. At first the Court seem to have been much more jealous both of their ovra. consistency and of their officers than they have since become. AVhere lands could not be let at the former rent, a factor was allow^ed to petition for power to let them at a lower rent, in Shaw, 19th June 1750, ]\r. 4070. The re- porter remarks that power to do this was generally granted, but only for the space of one year, and never for a space ex- ceeding three j'cars. Tn all cases the factor should first try a roup at the former rent before applying for powers, " in order to guard as far as possible against collusion on the part of the factor." A tutor having craved authority to set the pupil's lands for less rent than formerly, as that could not be obtained, was refused it by the Court, as if his " deed in set- ting pupil's lands were warrantable, the law would secure him;" Wright, 19th June 1701, M. 7429. Fountainliall, in his report of that case, concludes with this observation on the practice of the Court — " When factors cannot get lands set to the full avail to what it paid formerly, the lords refuse to intcrpo.se their authority, because it is frequently sought with no other design but to give down the rental, that at the roup it may be sold at an unworth, to the prejudice of the posterior creditors ; and so they arc left to act in these things as rational, i)rovidcnt men would do, as they will be answerable on their j)cril." Cases where the power has been granted are nntirnl afterwards Choc infra'). SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 25?) Creditors in one case asked power to the factor on an estate to grant leases of mines for thirty-one years, which, consi- dering the nature of the subject and the period of endurance, was much more of the nature of a sale than anything else ; but of late years such leases have been authorized (infra, p. 255). The Court refused the creditors' application, " as ill no case could they grant leases of a sequestrated estate longer than for such a time as it reasonably might be thought to take to bring the estate to a sale," or to finish the competition then depending in Court ; Earl of Gallo- way, 18th June 1747, M. 7438. It was the tenant in pos- session who made application to the Court, in Cawfield, 19th Dec. 1758, M. 14346, for authority to the factor to renew bis lease, which was a purely agricultural one, for thirty years. This modest request was based upon the outlay in inclosing, draining, and culture, to which he had been put, but it does not seem to have been granted, although his status as petitioner was not impugned. Where the estate which had been sequestrated and put under a factor was entailed, power to lease the lands for nineteen years was asked and granted, in Campbell, 12th Feb. 1755, M. 7445. Authority to lease a cotton-mill, for a term of years beyond pupilarity, if it should be judged expedient, was given in Hallows, 1st March 1794, M. 14981 ; but a tutor was refused power to let for a term beyond his office, in Beatson, 24th Feb. 1810, F. C. A factor loco ahsentis got power to let by roup, at a reduced rent, a farm falling out of lease, and that for seven years, as it was a rearing farm, in M'Lean, 25th June 1828, 6 S. 1018. Authority to subset a lease was granted in Hammond, 20th Dec. 1831, 10 S. 167. Power to let grazings to the highest offerer, either by public roup or private bargain, for three years, was granted in Morrison, 19th Jan. 1832, 10 S. 204 ; and again, 29th Jan. 1833, 11 S. 326. A curator bonis to a party of eighty years of age applied for power to grant a lease of nineteen years, but the Court would only 2rj4 SI'KCIAI. t)K l'.XIUA<»lil>INAlvV l>l IIKS, I'uWKliS, &c. autlitiiize a lease for seven years, us tlKix- was an " apparent probability of a termination of the curatory at no remote date"; Druiumona, 21st Jan. 1S32, 10 S. 210. Where an offer to lease subjects for twelve years had been made, and it was for the advantage of the estate to accept it, authority given to the factor to do so ; Bortlnvick, 7th June 1832, 10 S. 020. Authority to lease for thirteen years was asked, but the Court only granted leave to do so for seven years, in Brown, 7th Dec. 1832, US. 190. The Court authorized a factor to accept renunciations by tenants, and to reset the farms, without specifying any period for the leases, in Milne, 2oth Feb. 183G, and lUth March 1836, 14 S. o61 and G81. Where it appeared that an advance of rent could be got for a farm on a nineteen years' lease, whereas the rent must have been reduced if it were let for a shorter period, the Court granted leave to the curator bonis of the incapable proprietor to do so for nineteen years ; Ball, 6th July 1837, lo S. 1254. The factor loco tuton'.s was em- powered generally to grant leases of any part or portions of the entailed estate of his pupil for any period not exceeding nineteen years, in Ker, 24th Jan. 1830, 14 F. 451. A cu- rator bonis to an incapable was authorized to accept a re- nunciation by a tenant in bad circumstances, and to let the farm and adjoining orchard for twelve years, in Russel, 3d March 1840, 2 D. 721. In an application of the same kind, the period of lease sanctioned was nineteen years, A. B., 27tli ]\Iay 1841, 16 F. 950 ; and where a factor loco tuforis to an heir of entail a.sked and obtained power to lease, the condition was adjected, — provided that it was not inconsis- tent with the entail ; Sheph. id. HMb July 1841. IC F. 1288. The period of nineteen years was that for which a factor loco tuforis G SPECIAL oil F,XTHA<)IU>INAHY DUTIES, POWERS, &r. years, when the \var«l wouKl l^o innjnr, or lor iiiiictoeii years witli a break in liis favour at tlie eleventh year, in Hill, 15th July 1801, 14 D. 13. It is to be observed, that the pupil's whole estate consisted of this t>ne farm, and un it was the manor-house, the possession of which the Court thought it likely that the ward might wish to control on his reaching majority. Accordingly, in another case where a tutor nomi- nate proposed to let the family mansion, the Court sanc- tioned his doing so only for three years, and at a rent not k'ss than that hitherto paid by the pupil's mother ; Speirs, 23d Dec. 1854, 17 D. 289. We have already noticed a few cases wliere general lease- ing powers as to an estate and the farms comprised in it have been granted. The Court have indicated, of late especially, a strong disinclination to sanction transactions of which all the details are not before them ; but in the case of Lindsay, 13tli Dec. 1856, 18 D. 205, wliere, although the curator bonis of a lunatic had been in office only a year, he had found it necessary, from there being about three hundred small pos- sessions under L.30of annual rent, and the changes incident to their tenure, to apply regarding leases of them several times, the Court granted authority in regard to these possessions generally, to let them for periods not exceeding nineteen years after due advertisement. As Lord Ivory remarked in the case of Watt, 23d Feb. 1850, ] S 1 ). r,;VJ, '• It is a very deli- cate thing to interfere by anticipation." Before the factor can act on the power he seeks mid obtains, his office may have fallen. In the last-mentioned case, wliirh ( mbraced a number of matters, the curator />oni« of an incai)able got jxiwer to let on lease the corn-mill, house, and others, at Craigmill of Deumill, the ward's estate. In Fothoringham, lOth July 1857, 19 D. 964, a factor loco tutoris of a jiuidl, j)?*o indiviso j)roprietor of heritable subjects, was authorized to grant leases of thom to endtire to tho term next after the pu])il SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &r. 257 attaining minority. The other pro indiviso proprietor was tlie lessee in one of the subjects, and this may in part account for tlie powers sanctioned being limited in this case so much within what the Court have, as we have seen in the other cases, led factors and the public not only to expect, but we fear to believe, that they will and can grant. In that case the pro indiviso proprietor was a consenting party, but in the next case, Morrison, 11th Dec. 1857, 20 D. 276, she was not, and yet the Court authorized a lease for nineteen years, and gave the factor power to rebuild the steading and offices of a farm. They seemed to think that the opposition of the other proprietor was excluded by something of the nature of a personal exception, as Lord Curriehill put it : — " In that position of matters, which the pro indiviso proprietor has herself brouglit about, I think that we cannot refuse to grant those powers of beneficial administration." Lord Ivory, on the other hand, protested against granting the powers asked : " sequestration," he said, " was granted only for the safe custody and protection of the estate." " I am not aware that where 2'>'fo indiviso proprietors differ, the Court are entitled to compel one of them in this summary fashion to do what he is entitled by common law to refuse to do." We think that Lord Ivory's views are borne out not only by all the institutional writers, but by all the authorities, one of the latest of which is the case of the North British Rail- way Co. V. Edinburgh and Glasgow Eailway Co., 28th Dec. 1853, 16 D. 250, on which remarks, amply corroborated by those of Lord Deas, in the case of Morrison, who thought that appointment exceedingly doubtful in point of expedi- ency, are made in our first cliapter in connection with the subject of factors on pro indiviso properties. The subject of leasing shootings by a factor has already been made the subject of remark ; sujjra, p. 184. The powers of alienation, which the Court and their offi- cers have in special cases exercised, extend also to the R 258 SPECIAL on KXTRAOnniNAUY DUTIES, POWERS, &0. granting of feus. Such proccuilings savour so very much of 8pecuh\tion, which we liave seen the Court have so often reprobated, that it is not to be wondered at that the cases to bo found under that head are few. The first case was that of Vere, 29th Feb. 1804, M. 16389, where, although tlie transaction was preceded by the usual judicial forms and sanction, the minor succeeded in reducing it. In the next, Thomson, 10th March 1837, 15 S. 807, power was re- fused to the factor to feu to tlio present lessee the ground he occupied, on payment of a price alleged to have been arranged between the pupil's ancestor and the feuar, and in consequence whereof the pupil was alleged to be under a legal obligation to grant the feu-right. Where, on the other hand, the Court were satisfied that the obligees held obligations on which adjudications in implement could follow, they authorized the curator bonis to an incapable to grant feu-rights in their favuur ; Hawkins, 24th June 1848, 10 D. 1408. AVhere the proposed feuing would only be advantageous, and perhaps expedient, but for it no absolute necessity could be urged, the Court refused to sanction it ; Watt, 23d Feb. 1856, 18 D. 652. But where the ward, before he became inca])able, had begun to feu his estate, the curator bonis was authorized to complete the transactions into which the lunatic had entered, and also to grant new feus according to the ]ihm of feuing laid down atid already acted on by the ward. The Court held this course to be justified by the fact that the ngricultural value of the estate had ceased, in consequence of the feus already given by the lunatic, and that a following out of the plan was the only means of rendering the estate jtroductive. It was provided that tlie mansion-house, lawn, and woods were not to be interfered with; Alexander, 2r.th June 1S57, 1!> 1). 888. The Court refused to entertain an application by a factor loco tutoris for power to feu i>art of tlm pupil's entailed estate under the Rutherfurd Act (II nid 12 Vict., c. 36), SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 259 as it was incompetent under the statute, and they expressed an opinion that the circumstances did not amount to a justi- fication of tlie stop had it been open at common law ; Boyle, 19th Feb. 1853, 15 D. 420. In all the cases we have mentioned, the granting autho- rity by the Court imposed on their officer the necessity of granting leases, bonds, or other deeds in favour of the obli- gees. In the majority of these cases authority to grant the deeds was expressed, and in the others it was left to be im- plied. We saw that power to grant certain deeds was held to be among the ordinary powers of the Court's officers ; supra, p. 165. They have, however, when applied to, expressly sanctioned the granting of such deeds. Power to grant all charters of resignation and confirmation, precepts of dare constat, and other deeds, necessary for completing the titles of vassals and heritable creditors, was granted to the cura- tor bonis to an incapable in Fraser, 3d Dec. 1835, 14 S. 103 ; Brown, 5th Dec. 1840, 3 D. 188 ; Campbell, 30th Nov. 1841, 4 D. 136 ; Grant, 7th Dec. 1844, 7 D. 182 ; Hawkins, 13th Dec. 1848, 11 D. 247 ; to a factor loco tutoris in Dykes, 29th Nov. 1836, 15 S. 156 ; and M'Dougall, 7th July 1837, 15 S. 1255 ; and to a judicial factor in Milne, 10th June 1837, 15 S. 1104; and Fraser, 6th July, 1838, 16 S. 1271. A general authority to concur in all necessary deeds, with reference to the sale which was sanctioned, was con- ferred in Fergusson, 14th Jan. 1836, 14 S. 213. Where the incapable had, through the steps taken by the curator bonis, been disengaged from a mercantile partnership in which he was engaged, and the sums to be received on his account were ascertained, the Court sanctioned the curator's executing and delivering all deeds necessary for vesting in the persons of the other partners, or of other parties on their behalf, if they so wished, the share of the copartnery property, heritable as well as moveable, which belonged to his ward ; Ellis, 14th Dec. 1836, 15 S. 262. r2 1C)0 srKflAL reason why his rurator bonis got authority to com- SPECIAL Oil EXTRAORDINARY DUTIES, POWERS, &c. 263 plete his ward's titles in Allan, 10th Feb. 1854, 16 D. 534 ; and, where the obligation had been contracted by the pupil's father, the factor got power to make up titles in order to fulfil it, in Crighton, 13th Feb. 1857, 19 D. 429. The ne- cessity to sell led to the Court's also recognising the pro- priety of making up the pupil's titles by the factor loco tutoris in Wood, 6th March 1836, 18 D. 732. Having ob- tained power to lease, the factor also got power to make up the pupil's title to a pro indiviso share of a property, in Fotheriugham, lUth July 1857, 19 D. 964. Although factors loco tutoris and absentis, and curators bonis will get power to complete their ward's title, it is more difficult for other factors to obtain the Court's sanction to this step, as we shall immediately see with particular re- ference to factors on trusts. Where there has been seques- tration, the factor will not in the general case be empowered to make up titles to the estate, per Lord Gillies in FuUar- ton, 19th June 1834, 12 S. 753. The personal right to the subjects is in him, and that in general is sufficient for pur- poses of mere management ; M'Kenzie, 1st June 1836, 14 S. 858 ; see ante, p. 260. If any officer or his agents blunder a title, there can be no doubt where the responsibility rests ; and the Court will not afford any facilities for rectifying it, otherwise than by legal and usual means ; Geddes, 29th June 1858, 20 D. 1174. Thus, where heritable securities had been taken in name of the factor loco tutoris or his successors in office, or his or their assignees, the Court refused to the successor of the party who had thus taken the titles any remedy by extra- ordinary powers in reference to the securities thus taken, leaving him to make up a title, and to act otherwise in the matter as he should be advised ; Hay, 11th March 1837, 15 S. 850. It is therefore of importance that the judicial officer's titles should be completed in proper form ; and this will depend upon the state of the titles of the last feudal '2i'A SPECIAI, OK EXTRAOKDINAKY DUTIES, TOWERS, &C. projirictor of the subjects. Where tlie subjects are not bur- gage, the inuvisious of the Lands Titles Act (21 ami 22 Vict., c. 7o) will, it' applicable (and wo have already shown how the 21st section of that act can be made available, supra, p. 2G0), supersede declaratory adjudications, to which resort in almost every other case must be had. The form of such an adjudication will be found in Mr Parker's Sum- monses (1858.) It may be worthy of consideration whether, with the difficulties which surround the practitioner, and with special reference to the provision in section 20 that the old forms can still be used, resort may not be had very beneficially to the former practice ; even in cases to which, as we saw in the beginning of this chapter, it was evidently intended that the 21st section should apply. In the case of Drummond u. ]\Iackenzie, 30th June 1758, M. 16206, the Court first laid down the principles on which declaratory adjudications are founded, one essential being, that all parties appearing to have any interest must be called, and in particular the heirs of the last trustee, from whom — as the subjects are in the hereditas jacens oi his ancestor, — and the heirs of the truster for their interest, the subjects will be adjudged ; Shand, ii. 735. The provisions of the Transference of Lands Act, 10 and 11 Vict., c. 48, § 16, and also those of tjje Titles to Land Act, 21 and 22 Vict., c. 76, § 27, as to combining constitutions and adjudications, and superseding the necessity of charges to the heir to enter, must be kept in view ; Taul, 19th May 1829, 7 S. 621. It would even seem that declaratory adjudication has been adopted in re- gard to movable rights, Gavin, 30th May 1826, 4 S. 637, aff, 4 W. S. 48 ; but resort to such an action can never be needed by a judicial officer. The form of obtaining a dccer- niture against the parties in right of the property, as in Dal/.icll, nth March 1756, M. 16204; al.so Crawford, 22d May 1838, 16 S. 1017 ; Thorburn, ISth March 1858, 20 D. 829, seems to be more correct, and it was the course fol- SPECIAL OR EXTRAOKDINARY DUTIES, POWERS, &c. 2G5 lowed in Melville, Sth February 1838, 16 S. 457, and 472 ; in House of Lords, 29tli March 1841, 2 Kob. Appeals 45 and 88.* Instead of making up titles and conveying, a curator ho7iis allowed the creditor in the obligation against his ward to adjudge in implement, in Eanken, 11th Dec. 1838, 1 D. 222. Of course it is always more a matter for the grantee than the granter to determine as to the title he seeks, and to say what powers in reference to any deed or transaction he wishes to be sought of the Court. In Muller v. Dixon, 11th Feb. 1854, 16 D. 536, although the title of the factor was found sufficient, the purchaser who tried the question was not found liable in expenses. Where a debtor was desirous of paying up his bond, but would only do so on the cura- tor bonis of his creditor, who was lunatic, obtaining the Court's authority to receive and discharge the bond, the curator applied for and obtained the requisite authority ; Grant, 17th Jan. 1849, 11 D. 1030. Although a herit- able debtor or purchaser is not bound to be satisfied with aught else than the discharge of a party in right of the bond under a feudal progress, there are cases where the Court have granted to judicial factors on trust or intestate estates power to discharge without making up titles in their own persons ; and, on the same principles, it would seem to be quite competent (always supposing the grantee to be willing to accept such a deed) for the Court to empower their other officers to convey or discharge the securities be- longing to their wards, without making up a complete title in the persons of the wards. Thus a factor, where several securities stood upon titles in name of the trustees who had died, not only got power to assignor discharge two of these securities, but also to grant a disposition, in favour of a purchaser, of the property contained in another of the * See on this subject the very valuable opinion of Lord Currichill in Marquis of Ailsa, 15th Feb. 1859, 21 D. 492. 2G6 SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. bonds and dispositions in security, which the trustees as the creditors had sold, without making up any feudal title in his person ; Duncan, 11th Dec. 1838, 14 Y. 203. Special powers to uplift, and, upon payment, to discharge heritable debts, "without making up a title, were granted to a factor on a trust in the cases of Curie, 28th Nov. 1850, 13 D. 952 ; Allardice, 18th July 1848, 10 D. 1493; and to a factor on an intestate estate in Wood, Gth March 1855, 17 D. 580. On the othcT liaiul, wliore a factor on a trust asked warrant for payment, and authority to receive the amount in a he- ritable security, held by the trustee to whom he succeeded, (and to get a marking inserted in the Register of Sasines, stating that the said security had been extinguished by pay- ment, which seems to be altogether incompetent), and it was objected that the factor must make up a title to the security, tlie Court refused the petition hoc statu, and super- seded farther advising until a proper title should be pro- duced ; Pringle, Gtli July 1841, 16 F. 1208. The common agent in the ranking and sale, and also the purchaser of the property to be disencumliered, were the objectors in that case. The debtor was tlic objocttir in Smith, 17th July 1840, 8 D. 1220. He liad consigned tlic money in terms of the bond, as he held the factor unable to discharge, and the Court therefore granted the factor power to complete his title j)rcvious to discharging it. Authority to make up a title, as the delator wished to pay up his bond, was given to a factor loco ahsentis in TunibuU, 22d Dec. 1838, 14 F. 388. Where a curator bonis was empowered to make up other titles, his doing so to a heritable security was at same time sanctioned in Watson, 3d Dec. 1839, 15 F. 107 ; and Brown, 5th Dec. 1840, 3 D. 188. Tlie factor on a trust asked and got special authority to make up titles to a heritable secu- rity, and to discharge or convey the same, in Caird, 9th Dec. 1848, U D. 232. A factor loco infnris got authority to make up titles in his pupil's person as au heir-iMirlioner SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 267 to certain heritable securities, and also to discharge them, in Macdonald, 16th July 1845, 17 Jurist, 539. Where, however, the title has been already made up, in the person of the ward or the factor, to a heritable security, which in gremio of course bears the condition that the debtor may repay, it would seem to be a useless expense to apply for the Court's sanction to the officer's receiving the money and discharging the bond, unless where the debtor insists upon it, as in Grant, 17th Jan. 1849, 11 D. 1030 ; although it was done by the curator bonis to a lunatic, in Paterson, 28th Nov. 1850, 13 D. 952, as the power to receive and discharge debts is most certainly a usual and ordinary power ; see supra, p. 166. It might be prudent, before proceeding to sell the property in a bond, to ask the Court to sanction the step ; although, if there was a loss from the delay caused thereby, the officer would be liable ; see Innes, 17th July 1846, 8 D. 1211. The great and leading object of the judicial management being the mere preservation of the estate, for behoof of those concerned therein, the Court have never countenanced their officers entering upon transactions involving the alienation of a greater or less portion of the estate, Avith the view of increasing its value, or even of preventing probable loss, unless these were forced upon them by legal necessity ; but when thus compelled to enter into such transactions, the Court have been very willing to assist them in determining whether, if the step be afterwards challenged, they will have the defence that it was in rem versum of the ward or the estate and in preserving evidence to support such a defence. Accordingly, a factor loco tutoris having brought an action for the purpose at his own and his ward's instance, she being the elder daughter, in which the younger daughter was called as defender, his renouncing a lease, as it would be ruinous to the pupil, was sanctioned ; Meikle, 7th March 1823, 2 S. 242 ; Warden, 8th Dec. 1829, 8 S. 208. Where a party was factor for four pupils, he got authority to re- 2GS SPECIAL OR EXTRAORDINARY DUTIES, POM'ERS, &c. nounce a lease, to wliicli the eldest succeeded, for a consider- ation, and as the groat bulk of the succession was moveable, he also got authority, as acting for the eldest, to collate the value of the right to the lease, and on behalf of the other children to collate the moveable succession with their eldest brother the heir; Robertson, 14th Jan. 1841, 3 D. 345. A farm being inadenuately stocked, and the tenant admitting that he could not expend more on it, the factor on the estate was authorized to accept a renunciation of the lease ; Wink, 21st Jan. 1851, 13 D. 952. The judicial factor on a trust- estate, which consisted principally of the lease of a farm, was authorized to renounce it, where that was shown to be the only way of saving further expense in a sequestration by the landlord; Grahame, 20th Dec. 1851, 14 D. 312. The factor loco tutoris to four pupils was authorized to collate, as that step was for the interest of the pupil-heir ; Mitchell, 25th Nov. 1847, 10 D. 148. In tliis case, and that of Robertson just mentioned, one party was factor loco tutoris to four pupils liaving, as regarded the succession, falling to them, antagonistic interests, and it would have been preferable that they had had separate guardians. Simi- lar considerations lud Lord Kinloch to refuse to ap^ioint the same party to be factor on a lapsed trust, and curator bonis to a lunatic bencGciary, in Phillip, 23d Nov. 1858 (not reported). As it happened, the factors in ^litchell and Robertson, to provide against any after-proceedings, were entitled to resort to the Court before carrying through colla- tion ; ])ut in Kennedy, 15th Nov. 1843, 6 D. 40, where the conduct of a curator bonis to a lunatic executor was made the subject of remark by the Judges, the opinion was indica- ted that colhition, as ix-ing inevitable, mnst ))e gone into, and where that was the case, without resort to the Court before col- lating. Whether a minor or lunatic should, before majority or convalr-sccnce, elect by his curator bonis between his legal rights and his interests under a will, is for the Court (through SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 2G9 its officer) to determine, and the exercise of this option on liis behalf will only be justified, where it is absolutely neces- sary, with a view to the interests of other parties ; Cowan v. Turnbull, 13tli June 1845, 7 D. 872 ; House of Lords, 17th March 1848, 6 Bell's Appeal Cases, 222. Where the pupil was next heir to an entailed estate of L.800 a-year, but had no funds for his maintenance or edu- cation, his factor loco tutoris was empowered to insure his life for L.500 against that of the heir in possession, and immediately to borrow one-half of the L.500 on the security of the policy for the purposes mentioned ; M'Gruther, 27th Feb. 1835, 13 S. 569. Again, where the heir of entail in possession, having had his liferent attached by diligence, could not support the pupil, her factor loco tuto7'is, as there was no other means of providing for her maintenance or education, was authorized to purchase an annuity for her during the period of her expectancy, and to grant a security over the rents of the estate, which might become payable after her accession and during her life, for the price of the annuity ; Miller, 26th Nov. 1836, 15 S. 147. A lunatic's estate being evidently inadequate for her support, the cura- tor bom's got power to sell her heritage and to uplift and discharge a heritable bond, and, if need be, to sell under it, as also to sell her moveable property, and to lay out and in- vest the proceeds of the estate, after deducting all claims and expenses, in an annuity on her life, which (curiously enough) was authorized to be taken payable for her behoof to the parochial board for the management of the poor of the parish; Innes, 17th July 1846, 8 D. 1211. Where there appeared to be a considerable balance of uninvested funds in the hands of the curator bonis, the Court (without a petition and ex proprio motu) suggested the investment of part of them in the purchase of an annuity for the lunatic ; Towers, 17th Feb. 1848, 10 D. 720. Where the lunatic's income was insufficient fully to provide for her comfort, her 270 srKt'IAI. OK EXTRAOUDINAKY DUTIES, POWKIIS, &r. curator bonis was authorized to sink a part of her capital in tlie purchase of an annuity on her life from cither a govern- ment savin_c:s bank or an establislied insurance company; M'Gilclirist, 13th June 185;'), 17 D. 917. Tlie whole of the capital of the lunatic, who was a wiili»W( r with two children, was authorized to he sunk in an annuity on his life, where his relatives undertoiA to provide for the two children ; but the Court restricted the parties to be transacted with for the annuity to an insurance company in Scotland, and remitted to the Lord Ordinary to see the investment made ; Paisley, 5th ]\Iarch 1857, 19 D. G53. The Pupils Protection Act, J2 and 13 Vict., c. 51, § 7, enacts that wherever a curator bonis of a party incapax, and it would also seem a factor loco tutoris, shall deem the step proper for the comfort or welfare of such person, the whole or part of his estate may be sunk on annuity, if the Court on his application, and after report of the Accountant, sanc- tion the measure. This sanction, when obtained, is declared final, and not subject to appeal. The question as to whether a power of compromise was to be reckoned as among an officer's ordinary powers has been already discussed (mipra, p. 175), and there seems to be a dis- tinction between the powers of a judicial factor and the other officers of Court in this respect — the former requiring special authority, and the others bavin lj the jiowcr to submit without it. All the officers have, however, without distinc- tion, asked in various cases the Court to sanction the trans- actions, which the compromise that had been aftected in- volved. Thus, where tlie cnrator bonis to a lunatic, in real- izing the debts which formed part of his estate, had an oflfer made to him by one of the ])arties lialdo in a debt of up- wards of L.400 of a sura of L.200 for a discharge to all the debtors, he adopted proceedings before the Court, in which the next of kin of the lunatic concurred. The curator ^liowrrl tliat even by legal compulsitors ho could not hope SPKCIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 271 to recover more than the sum ofifered, and he was therefore authorized to receive it, and to discharge all the parties, provided payment of the sum was made by a day fixed ; Dalmahoy, 9th July 1836, 14 S. 1125. Where the other parties interested along with the lunatic in a count and reckoning, as to intromissions with a farm forty-two years ago, which was pending at the date of the appointment of a curator bonis, and would undoubtedly be an expensive suit to prosecute, had agreed to compromise it, the curator w^as empowered to do so on the same terms, because the remain- der of the lunatic's estate was small, and would be spent in making his claim good in the suit ; M'Dougall, 24th June 1853, 15 D. 776. On the principle that a factor is warranted in disposing of the pupil's heritage, when that is necessary, in order to avert serious loss, the Court sanctioned a com- promise that involved the sale of certain lands and build- ings, which had been rendered useless and uninhabitable by reason of coal-workings beneath, in favour of the proprietor of the minerals, and the acceptance of a sum from him in full of past damages, and the value of the lands and build- ings ; Muller, 21st Feb. 1852 (not reported, but noticed in Muller V. Dixon, 11th Feb. 1854, 16 D. 536). Farther, the Court gave their sanction to a transaction, which involved not only the sale of the pupil's heritage, but the taking a heritable security over it, and some other pro- perty belonging to the purchaser, for the price thereof. The estate of the four pupils in part consisted of a pro indiviso right to a tenement, and the factor loco tuioris had obtained an offer from another of the p'^'O indiviso proprietors, who had agreed to purchase the shares of all the other ])'^^o indi- viso proprietors, to give a large price for the pupil's share, on condition that the whole tenement should meanwdiile be the security therefor, and, as the Court came to be satisfied that the transaction was a very advantageous one for the pupils, they authorized the factor to accept the offer, and (after 272 SPECIAI, <»R EXTRAORDINARY mTIKS, I'dW TRS. ,^.-. making up tlio pupil's titles) to concur witli tlir other 2^'>'<^ tjidiviso proprietors in conveying the property to the pur- chaser under the real burden of the pupil's share of the price, and also to obtain the writs necessary to make the security therefor extend over the wliole property. The factor at the same time got power, on payment of the price, to uplift it and discharge the property, and to re-invest the money ; but the whole powers were clogged with the condition — thattlie heir's rights and privileges of collation and all others com- petent were reserved in like manner as if the transaction had never been gone into; Donaldson, Stli March 1838, 16 S. 813. In another case, where the Court came to be satis- fied that by the sacrifice of a comparatively small sum a factor loco tidoris w'ould save the pupils from ultimate loss in some shares in an insolvent joint-stock company held by their father, he was empowered to convey the shares and to pay the sum agreed on to the parties, who were to'accept of them on that footing, and to relieve the wards of all future liability; Lindsay, 0th Dec. 1848, 11 D. 232. Where the curator bonis of a lunatic whose affairs were in a bad state got the creditors, who wore threatening diligence, to accept of 15s. per pound on immediate payment, he was autliorized to borrow on the lunatic's life-interest in an estate and on a policy of insurance, coupled with the security of some friends, the sum necessary for the pa3-incnt of those creditors, as well as a farther sum to pay taxes, expenses of management, pre- miums of insurance, and compositions to the creditors whose claims had not been lodged; Campbell's Curator, 11th Dec. 1851,14 D. 312. Where the proprietor of an estate had bc^- comc insane, and meanwhile his commissioner under autho- rity formerly given had sold his estate, the curator honia subsequently appointed was, in respect of its advantageou.<» nature, and to avoid the questions otherwise to be raised, authorized to adopt the transaction and to fulfil it; Allan, 10th Feb. 1854, 16 D. 534; CHphton, 13th Feb. 1857, 10 D. 429. SPECIAL on EXTUAORUIXARY DUTIES, POWEIIR, &C. 273 An officer has no power to compromise any questions affecting his ward's legitimacy, and he cannot apply the estate to such a purpose, however apparent the benefits to the ward ; Doud, 21st Jan. 1847, 9 D. 511. In the very varied circumstances in which it has been seen that judicial guardians are appointed, it is evident that necessity will demand exceptions to the rule under which they are not permitted to alienate, distribute, or pay away the estates committed to their care without special autho- rity. Thus it is undoubted that, where the estate to be man- aged is heritable, the taxes and other burdens effeiring to it must be paid by the guardian, and without his resorting in every instance to the Court for special powers, supra, p. 173 ; or where, there being no litigation or other obstacle to the proprietor's having the income and revenue of his estate ap- plied to his maintenance, the factor or curator is under an ob- ligation to make payments out of the estate on tliat account. The above-quoted decisions as to the circumstances, in which the Court have sanctioned their officers' purchasing annuities for their wards with the monies of the estate, proceed upon and recognise the principle just stated. The direct autho- rities on these points are noted below ; and in many of these it will be found that the parties seeking and obtaining the- Court's warrant w^ere the creditors or obligees, and not the officer. It is to be observed that, where the officer is made re- spondent, the case frequently falls within the limits of those ordinary and usual po^yers which he, if so inclined, could have exercised ; but his declinature to pay or perform in such cases necessitates the application. Section 9 of the Act of Sederunt 1730 recognises the competency of such proceedings, — " Such factor shall make payment of his in- tromissions to such person or persons, and at such times as the said hjrds shall in the factory or otherwise appoint ;" Kae, 28th Jan. 1858, 20 D. 461 ; see siqyra, p. 188. Accordingly, preferable creditors will get authority to the 'J7i SPKCIAL ()1{ KXTKAOKDINAUY DUTIES, POWERS, &c. fdctor to pay tliuin, wlicii lio is in funds so to do. A supe- rior got a warrant for liis fcu-duty in Duke of Roxburgh, 28th June 1738, ^I. 14340 ; and tliere also the common agent in the litigation, which necessitated the factory, ap- plied for an order on the factor to pay him a sum to carry out a sale of the estate. Where a clergyman of a parish in Scotland became in- capable, his curator bonis applied for authority to appropri- ate part of the fruits of his benefice to an allowance for pay- ment of the assistant who was thou officiating, as well as of such assistant as might thereafter officiate in the parish during the clergyman's incapacity. The Court had some hesitation about interfering, and they did so without fixing the amount of the allowance their ofllcer was to make, leaving it to him on his own responsibility to adjust the terms of the allowance to be made to the assistant clergy- man; Uamilton, 24th Nov. 1838, 1 D. 110. The curator bonis for a widow who was incapax petitioned the Court to authorize the judicial factor on her husband's intestate estate to i)ay over to him one-third of the free resi- due of the moveable estate as i\\Q Jus rclicke, and this claim the factor had refused to acknowledge, because there was in existence a postnuptial contract, the provisions of which, having been substituted for the widow's legal claims, had been renounced by tlie curator, as resort to her legal rights was more advantageous, and in tliat jiost nuptial contract reference was made to an antenuptial one ; which was not now in existence, but which the factor alleged was revived by the renunciation. TJie Court, in this state of matters, and with reference to the condition of the family, who were five in number, but one of them was insane, resolved to deal merely with four-fifths of the third share of the moveables, and coupled the authority, they granted to ]tay that portion of the estate to the curator, with a reservation of all farther claims whieh the widow could at anv time establish under SPECIAL OR EXTUAORDIXAKY DUTIES, POWERS, &c. 275 the antenuptial contract. The four cljildren sui juris were consenting parties to the application, and the difficulty, which would have occurred if the Court had dealt with the fifth belonging to the lunatic child, in respect that the antenuptial contract might have been better for her and worse for the widow than their legal rights, was avoided by the limited authority granted to the factor ; Hope, 15th Jan. 1858, 20 D. 390. The curator hoiiis of an incapable, who had a large family, applied and got special powers to provide funds for the outfit of a son, for whom the father had, previous to his in- capacity, purchased a cadctship in the Indian service, in Howe, 12th Feb. 1859, 21 D. 486. The Court there not only regarded the step as a completion of the father's purpose in regard to the son, but as a benefit to those interested in the estate, from his being thereby enabled to do something for himself. The officer was at the same time empowered to provide funds for the support and education of the incapable's other children. Where claims of aliment or for beneficial expenditure are made, the creditors in these may prefer an application for authority to the factor to pay them (see cases of Court and Grant, infra, and Rae, supra). The subject is fully treated of in Chapter II. In Maxw^ell, 11th Feb. 1717, M. 16352, a tutor instituted a process against his ward's next of kin, in order to have the aliment he ought to pay modified ; but the circumstances were somew^hat peculiar. The Court would seem in Gordon, 30th June 1832, 10 S. 742, to have approved of a curator bonis fixing the annual allowance for the maintenance of the ward and his family, leaving it to the parties interested to ask review of his decision by a petition for w^arrant to pay a larger allowance. In the case of Court, 29th Feb. 1848, 10 D. 822, the form of an action was declared to be preferable to a petition, where an heir souglit to obtain aliment from a s2 27G Sl-KOIAL oil i;XTKA<»Kl>INAi;Y DUTIEH, P0WEK8, &C. cm&tor bum's ; and in AitkcnlieaJ, 28tli Fol). 1852, 14 D. 584, there were a petitii)ii and action conjoined. The mother of the pupil i)etitioncd tlie Court, and thoy specially author- ized his factor loco tutoris to pay to her L.300 a-year out of the rents of his entailed estate. Of this sum, L.150 was declared to be for the pupil's maintenance, hut the other L.150 was to be applied for her own maintenance, as she was otherwise inadequately provided for, and the oldiga- tion of supporting her lay upon the pupil ; Grant, 24th Feb. 1838, 16 S. 052. Two years afterwards, this lady again applied to the Court, on the score of the pupil's health hav- ing been so delicate as to require constant medical attend- ance and removal to a warmer climate, and the factor was authorized to make her a payment of L.300 to defray the extra expenses thus incurred by the petitioner ; Grant, 3d March 1840, 2 D. 722. On the other hand, it was the curator bonis who applied to the Court in IIamilU)n, IJth Feb. 1842, 4 D. 627. He got authority to pay from the estate, which yielded L.240 per annum, L.20() for the maintenance of the lunatic pro- prietor and of his wife and child, and L.5 as travelling ex- penses to the lunatic's brother when he came to visit him. But the petitioner, in the case of Primn^se, 20th Nov. 1852, 15 1). 37, was the lunatic's mother. As his surplus income arose from savings out of a gratuitous provision for his behoof, which might be withdrawn in consequence, the authority sought, in order to the application of that surplus to the support of the petitifnicr and her otlier son, the lu- natic's brother, was refused ; but in Kussell, 8th Feb. 1850, 12 D. 913, where the lunatic had a surplus income, the cu- rator Ix/nts was authorized to pay L.SO a-year for the main- tenance and education of her son ; sec case of Howe, S7q>ra. In the above-mentioned case of Aitkenhead, 28th Feb. 1852, 14 D. 584, a factor loco tuioris to the \\\\\)\\ son, wliose father's moveable estate ha or would send any i)ortion of the estate beyond their jurisdiction to be under the control of an English E(piity Court, especially' where the estate in part consisted of what was a surrnt/nfi/ni for what was in the person of the ward herself during her sanity heritage, and mu.st still in all questions be considered such by the law of Scotland. These views were adopted by the Court, and the application was refused. Thereafter tlir Lord Chancellor recalled the former grant to the comn)ittee, and authorized liim to take such stei)S, as he might be advised were neces- sary, for realizing to the lunatic the full benefit of licr entire income, and causing the same to be remitted to England for her maintenance and .support. The committee then ]ietitir)ned thc' Court to ordain the ciiiattir fd pay rivor to Sri'X'IAL OR EXTRAORDINARY DUTIES, POWERS, &('. 279 him the free proceeds of tlie estate ; but in answer it was stated that the curator liad periodically remitted the sums necessary for the lunatic's maintenance, and that he was bound to do no more ; as in the event -of her death the accu- mulated surplus of her funds, as well as the principal sums themselves, would fall to be distributed according to the law of Scotland, and not that of England. The Court having ascertained that L.310 per annum was sufficient for the lunatic's maintenance, ordered that sum to be remitted by the curator to the committee, " reserving to either party to make such farther application to this Court as may be rendered necessary or expedient from any alteration of cir- cumstances which may subsequently take place ;" Murray, 24th Feb, 1849, 11 D. 710. In another very similar case, Allen, 24th Nov. 1855, 18 D. 97, the Court's officer (who erroneously is styled a curator bonis) was, on the petition of the English guardian of the pupil, appointed to pay to her the annual returns (after deducting all proper charges) already received, or to be received by him from the estate under his management. Quoad ultra the prayer of the pe- tition was refused, in respect that the judgment in the case of Murray had already settled the point as to the Court's powers to transfer any capital sums beyond their own juris- diction. Hence the Court refused to authorize the curator bonis to a lunatic lady to remit her funds in this country to her son in New York, who was willing in that event to provide for her maintenance ; Dalrymple, 9th March 1837, 15 S. 769. The Court in these cases were only acting on the principles enunciated by the House of Lords in the case of Lord Melville, 29th March 1849, 2 Eob. App. 45 and 88 (in Court of Session, 8th Feb. 1838, 16 S. 457 and 472),— " The administration must be in the country in which pos- session of his property is taken and held under lawful au- thority." We have already seen (Chapter II.) that the form of an •JSO SPKCIM, OK KXTHAORIUNAUY IilTlKS, POWEUS, &r. aj»plicution lur special powers may hv emi)luycJ, to liave an officer of Court aiitliori/ed to pay or make over tlic estate he was appointed to inaiiage, with a view to divesting him thereof either in whole or in part. Accordingly, where the liferentrix of the fund under judicial management pro- duced evidenix' that she was entitled to succeed ab hifcstato to the fee of the fund liierentcd l>y her, the Court autho- rized the factor to pay over the fund, tlie petitioner ox- pcding confirmation before extract ; Nisbet, 15th Jan. 1848, 10 D. 3G1. The Crown's donatary, where a right to the estate has vested in the Crown, can call the factor to ac- count, and make payment to liiui of the estate under his management ; Teviot, 27th Feb. 1607, M. 14340 ; see Wil- liamson or Hare, 28th Nov. 1856, 19 D. 99 ; and Fenton Livingstone, 16th Jan. 1857, 19 D. 280 ; also the other cases mentioned, in connection with petitioners for special powers, in Chapter II. Special authority to make payment was conferred, in the cases we have noticed, because of the legal obligation under which the Court's officer lay, and which could have been enforced in the usual way. The Court have sanctioned the use of this summary procedure by their officers in other cases of payments in fulfilment of obligations. In Thriep- laud, 7th June 1848, 10 D. 1234, a curator ^w/s to a lunatic proprietor obtained the necessary sanction to his continuing the allowances to tenants for improvements, as they had been made previous to his appointment, to his executing re})air8 on the mansion-house and some of the farm stead- ings, ami to his erecting a new farm-house, because the Court were satisfied the.se things were indispensably ncccs- nary to the proper management of the estate. Power to re- constnict the offices attached to the mansion-house on the ward's property, and to charge the estate with such expense, was granted in Ball, 24th Nov. 1838, 1 D. 109. Sanction was given to an expenditure of L.20 in converting a hill SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &c. 281 iuto a plantation, and running a wire fence betwixt it and the adjoining agricultural fields, where it was asked along with other powers, in Esson, 28th Feb. 1856, 18 D. 676. It is only where circumstances justify extra and unusual expenditure of this kind that the Court will authorize its being made, and where their officer is not in funds, we have already seen that he will be authorized to borrow the amount to be expended. In the case where he has funds whicli might be thus expended, but where the purpose to which they would be in that case applied was one, such as re- building a farm-house and offices, which tended solely to benefit the next successors to the estate, who were not the ward's next of kin, he will also be authorized to borrow money for the purpose ; Eobertson, 14th July 1855, 17 D. 1115. In this way, what is ex facie an alienation of the estate efi'ects the preservation of the capital thereof, the great object of factorial appointments ; Doud, 21st Jan. 1847, 9 D. 511. In that case the Court refused sanction to payments out of capital by a factor loco tutoris, made by him with the view of waiving questions as to his ward's legiti- macy. However beneficial their application might be held, another principle came into play, namely, that which dis- ables the Court's officer from waiving any legal nullity ; Hunter, 6th Feb. 1739, M. 16341, especially in a question of status which is puhlici juris. In the case of Doud (which in its early stage is reported as Kennedy, 16th Nov. 1841, 4 D. 12), it having been stated in a petition relative to the custody of the pupil that the factor loco tutoris had made a payment to the nearest agnate of L.500 out of the pupil's funds, in consideration of his relinquishing his claim to the office of tutor-at-law, and the officer's explanation being that the L.500 was given on the understanding that the agnate should not dispute the legitimacy of the pupil, which he had threatened to do, the Court ordered the factor to give in a minute stating the facts connected with his appointment, 282 SPECIAL OR EXTRA0RI>INA1;Y niTIKS, TOWERS, &c. and explaining tlio appropriation of funds wliicli had taktii place. " These are alleged facts," remarked Lord Mackenzie, " which are hroiight heforc us in regard to our own ulHcer. It is, I think, a part of our duty, ex parte Judicis, to ask an explanation of them as between us and uur factor, and, if there be no exjdanation clearing him, to have him removed, and a proper judicial factor appointed, with whose help we can better provide for the custody of the child." The factor did not obtemper the order to lodge a minute, and the dis- closure was postponed until, the factor having been seques- , trated and removed, lie and his cautioner applied to get the accounts audited, and for discharge. The incapable who had disputed his incapacity, in a peti- tion for the recall of an appointment of a curator bo7iis by the Court (and after a proof as to his condition, the recall was refused with expenses against the agent who had used the incapable's name), presented an appeal to the House of Lords, which was at first di.smissed from a failure to enter into the recognisances demanded by the standing orders, but was afterwards revived and these orders dispensed with, " if the Court of Session, upon application beingmade to them, should not think proper to furnish the petitioner with funds out of the hands of his curator de bonis for prosecuting the said appeal." A petition was accordingly presented, but the Court refused to allow the curator bonis to furnish the petitioner with tlie funds to prosecute the n])penl ; Bryce. 21st Jan. 1S2?., 2 8. 121. In a i»reviou8 part of this chapter (suj^ra, p. 158), we have seen that the right to raise or appear in actions is one of the usual or ordinary powers which a factor has to exercise. In fact, as we have there shown, it was only by means of an action that he could until lately make apjilication for special powers. Accordingly, it is only in very recent years that any cases occur where s]»ecial powers in regard to actions have been conferred ; and these decisions arc explicalde, only SPECIAL OR EXTIIAOIIDINAKY DUTIES, TOWERS, &c. 283 on the principle that the Court grant ahnost any powers asked, because they consider themselves as in no way there- by benefiting either their officer or anybody else ; Boyle, 19th Feb. 1853, 15 D. 420. The power to pursue and defend processes generally was refused in Baird, 13th Jan. 1741, M. 16346, " without prejudice to the factor's ap- plying, as any particular process should be pursued, for or against the pupil;" and in Wood, 6th March 1855, 17 D. 580, the Court refused authority to take all steps needful, by action or otherwise, for recovering a debt, as the factor must judge for himself as to the steps which he was entitled and ought to take in regard to it. Power to raise actions of non-entry and to enter vassals was refused as unnecessary in Kerr, lltli Dec. 1857 (not reported). The liability of ofiicers as regards the expenses of actions is noticed supra, p. 197, in connection with the charges al- lowed against the estate. Actions may be competently directed against the factor, as explained in the preceding chapter, except where there is a ward, when he must be called as defender, Govan, 20tli Dec. 1814, F. C. ; and by so doing, the officer, as his judicial commissioner, will be competently brought into Court, on the principles which distinguish the various ofiices as explained in the commencement of this chapter ; and this would seem to hold good even where the guardians of a minor, if he any had, were cited edictally and without being named. Where an action has been raised against the factor or the ward, the officer requires no special powers to defend. Further dili- gence on the dependence (as attaching the obligation to account, Bell's Corns, ii. 74) may quite competently be used against the factor ; Morrison v. Rennie, 23d Nov. 1847, 20 Jurist, 33 ; Mathcw v. Pattulls, 13th Nov. 1858, 21 D. 18. In both these cases applications for recall of the arrestments used were made by the factor without their previously ask- ing special powers to do so. But special powers to institute 284 Sl'hCIAL OR EXTUAOIIDINARY DUTIES, POWERS, &c. and follow forth tlie necessary procedinv umli r the Ruther- furtl Act (11 and 12 Vict., c. 3G) wore asked and granted, althougli it was afterwards found that the factor loco fiii oris could not competently act as he was enii)0wercd to do, in Boyle, IDth Feb. 1853, 15 D. 420. The question whether the Court's officer requires special authority to iniplenKut a decree, pronounced against him by a competent authority, has been considered as of .some diffi- culty. Such decrees, if pronounced l>y a Judge in Scotland, must be of two kinds : either by the Court of Session — that is, pre-eminently, the Inner House — who in the exercise of their nohilc ojjkium appointed the factor ; or by Lords Ordinary, Shcrifls, and other Judges, whose decisions need not be allowed by the factor or any party interested to become final before a decision of the Inner House of the Court of Session. In both classes, of course, there is the court of ultimate appeal open ; but it would seem that an officer of the Court of Ses- sion, in respect of his position more especially, as well as of the decision in Bryce's case just noticed, requires special authority from the Court of Session to refuse imi>lcment of a judgment by them, that is, the Inner House ; and to seek review of it by the House of Lords. As regards the judgments of Lords (Ordinary and other inferior Judges, which do not necessarily finally determine questions, a petition in reference to such judgments by the factor is well calculated to attain what is the legitimate and really useful object of such applications, namely, inti- mation to all concerned of his intention to acquiesce in it, in order that they may appear and propone aught in the con- trary. Thus, where a Lord Ordinary in a process of decla- rator and division, rai.sed by the heir.s-portioners other than the pupil against her and her factor loco hUoris, had divided the projKjrty and appointed the factor and other parties to execute the necessary deeds, the factor apjilied to the r'nurt, by sisting iiinisclf in a petition for special powers to SPECIAL OR EXTRAORDINARY DUTIES, TOWERS, &(:. 285 that efi'ect by his predecessor in office, and obtained autho- rity to obtemper the Lord Ordinary's interlocutor ; Chambers, 27th May 1856 (not reported). A curator bonis to a party incapax was in the same way authorized to implement the decree pronounced by a Lord Ordinary dividing and allocat- ing the pro indiviso property, and ordaining the whole par- ties to execute the necessary deeds, in Scott, 21st Feb. 185G, 18 D. 624. The case of Livingstone, 3d July 1835, 13 S. 1033, is to the same effect, only that there it appears the Court, on the authority of a statement by Mr Parker, Assist- ant-clerk of Session, which must have proceeded on some misapprehension, granted the powers asked without any intimation whatever. In the case of Eae v. The Incorpora- tion of Candlemakers, 28t]i Jan. 1858, 20 D. 461, it was attempted to make tlie judicial factor on the estate of the Incorporation liable in the expenses, in which it had been found liable to the pursuer, without a separate application f(ir warrant on him. The Lord Ordinary, before whom that motion was made in the action, reported the point to the First Division, and their Lordships were unanimously of opinion that a separate application for authority to the factor to implement the decree for expenses, and for warrant to pay them must be presented. On the other hand, and in regard to the other class of judg- ments, viz., those pronounced by the Inner House, there is no trace of any authority for an officer s requiring any special powers to implement them ; and the enactment of the Act of Sederunt 1730, that the officers of Court are to make payment of the funds in their hands to " such person or per- sons, and at such times as the said Lords shall, in the fac- tory or otherioise, appoint," implies that such special autho- rity is unnecessary. Had the Court ever recog-nised a con- trary practice, some traces of it would have remained, con- sidering that in every ranking and sale — a form of process with which, previous to the introduction of mercantile 'JNG SPECIAL OK EXTRAORItlNAllV DITIKS. I'OWKKS. &.-. sequestratidii, uur Courts wcru very iainiliar — sudi ;ipplica- tions must have been repeatedly made. Yet we have no de- cisions as to tlie Court's granting to factors, on tlie subjects aflecteJ by tlie litigation, special powers, except for such purposes as paying preferable creditors their claims, — as the superior his feu-duty, or granting the common agent a sum to carry out a .sale of the estate ; Duke of Roxburirh. 28th June 1738, M. 143-15. Besides, there would, if any such proceeding were necessary, arise the expensive ano- maly of the Court of Session authorizing its own officer to implement its own final decrees. In this lack of direct au- tliority, it is right to mention that, although not noticed in the report of the case, the point was virtually decided in A. V. B., Gth March 1858, 20 D. 778. That was an action for aliment b}' a daughter against her lunatic father and his curator bonis, in which the circumstances were urgent. The curator lodged defences merely to exonerate himself, at the same time stating his belief to be that there could be no objection to decree as concluded for being pronounced. Such actions arc Inner Ilouse cases, and acc^riliiigly the Second Division forthwith decerned " ad hitrrim against the defender for payment to the pursuer of an aliment at the rate of L.SO per annum, beginning at the term of Candle- mas last, and payable quarterly until farther order of Court." Farther, the estate in the hands of a judicial factor was found liable by the Ilouse of Lords in the expenses of an action re- garding a legacy out of it, and the Second Division, when they came to apply the judgment, ordered the factor " to make payment <>ut of the estate in bis hands, and which is the sultject of the said appeal of the costs in respect of the said appeal incurred," " as the amount thereof shall be certified toliim by the Clerk of tlic Parliaments," — and on such cer- tificate being obtained, the factor implemented the order by paying the expenses ; l^fagistrates of Dundee v. Morris, 20th July 1858 (not reimrted). We take it, therefore, to be SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &C. 287 now settled, that factors do not require to present a special application for authority to implement a decree of either Division of the Court of Session, in contradistinction to decrees of Lords Ordinary and other inferior Judges. The Court of Session have interponed special authority, in order to the implement by their officer of a decree pro- nounced by a foreign court of competent jurisdiction. In Lamb, 20th July 1858, 20 D. 1323, where an officer (cer- tainly of a rather anomalous character, as we have explained in our first chapter) applied for powder to implement an order upon his ward by the Court of Chancery in England, the Court remitted to English counsel for an opinion as to the regularity of the procedure and the obligatory nature of the decree, and upon being satisfied on this head, empow^ered their officer to dispone, convey, and make over the heritable securities he managed to the executors, under an English will and codicil, which it had been decided embraced the whole of the testator's estate, and by the provisions in which, as more beneficial than his legal rights, it had been elected that the absentee — a pupil and child of the testator — should abide. We shall now attempt to digest a number of decisions as to miscellaneous cases in which special powers have been asked. Where these were granted, the circumstances are generally very peculiar. The authority granted em- braces purchases with the factorial funds, payment of an- nuities, and giving deductions to debtors to the estate, besides the granting of an assignation with a view to enable a trustee to adjudge a pupil's ancestor's property. A power to invest the savings of the Duke of Buccleuch, who had had a factor loco tutoris aj^pointed to him, in the purchase of heritable estates, was repeatedly given ; Craigie, 10th Jan. 1758, M. 7455. It would appear, from the fact of heritable securities being at the same time authorized (for which it was unnecessary to have asked 288 Sl'KCIAL OR EXTUAOIIDINAIJV lUTIES, POWERS, &c. l)o\v«.rs ; sfipra, p. 170), tliat tliosc jiurcliascs Wrre vicwcnl in the li-ht of investments merely. At lir.st tlie Court grantc'l the applications as matter of course ; but luul it been afterwards at all practicable to have avoided sanction- ing the continuance of such investments, it is evident that the Court wouM have been glad of an opportunity of doing so. They never allowed the case to be followed as a pre- cedent, and no purchases of heritage as a temporary invest- ment have ever been sanctioned. In the case of Watt, 23d Feb. 1850, 18 D. 652, power was granted to the curator bonis of a party incapax to purchase the Crown's right in the alveus of a river in front of the ward's property, of which the Commissioners of Woods and Forests had made him an offer previous to disposing of it to a railway company for a goods station. The property to be affected disadvantage- ously, in the event of the curator's refusal to purchase, was a dwelling-house rented at L.70 a-year, and its value as a residence would undoul)tcdly have been destroyed by the windows having as an outlook within a few yards a goods depot, where, besides tho attendant noi.se, lime, coals, manure, &c., would be loaded and unloaded at all times. This is the only case of recent date in which the Court have autiiorizcd the purchase of heritage by an officer of theirs. In one case authority was granted to a factor loco tutoria to purchase moveables with a part of his ward's estate. The ward was a peer ; and, as the pictures, books, and furni- ture in the principal mansion-house of the family had fallen to the executor of the pupil's predecessor, the factor's pur- chase of them was sanctioned ; Boyle, 28th Fel*. 1852, 24 Jurist, 285. In connection with the same factory, the Court's sanction was a.skeonis: sj/pra, p. 212. The judicial factor on a trust-estate is another officer in a peculiar position as regards the sjjecial powers he can exer- cise. The charier of his powers is the trtist-deed under which he has to act, and the ends and objects of which ho has to fulfil ; supra, p. 221. Any special or extraordinary acts, which the trustees under if might have done, he will, on satisfyinp: the Court that the proper time has arrived, get SrECIAL OR KXTUAOKDINARY DUTIES, POWERS, &c. 293 their sanction to his doing and thus fulfilling the trust. But they will not sanction his actings ultra, any more than they would have done those of the trustees to whom the factor has succeeded. In Ker, 3d March 1855, 17 D. 565, the trustees, under a marriage-contract entered into in 1848, and which vested them with no power either to sell or bor- row, came to the Court asking them to empower them to borrow money. The Court refused this petition, even on the assumption that they could interfere, which was a very doubtful question, on the ground that it would be a very strong interposition of their power to undo a contract of that kind, and be ^^rtually making a new contract between the parties. Where there is power to borrow in the trust-deed, the factor will be sanctioned in contracting loans. Home, 7th March 1793, M. 16382 ; Hay, 20th June 1811, F. C. ; and it will depend on the deed giving power to insert a provision as to the creditor's selling the property given in security, whether the question which arises as to the Court's power to authorize a sale by a creditor wall be excluded. Eeference is made to our remarks on the point ; supra, p. 250. Where the trust-deed orders a sale, the factor will obtain authority to sell, when that becomes necessary by demand of the bene- ficiaries or otherwise, but only by public roup, even though the trustees w^ere vested with power to sell privately, as this is a power which is held to have been confided to them per- sonally by the truster, and not to be given to a party who can plead no dilectus perso7ice on his part ; Arthur, 30th June 1846, 8 D. 943 ; Hamilton, 2d Feb. 1850, 12 D. 913 ; Edraond, 3d Dec. 1850, 13 D. 952 ; Morison, 1st Dec. 1855, 18 D. 132 ; Meikle, 4th June 1856, 18 D. 988. These powers or other powers may be put merely in the discretion of the trustees, and not made imperative, and these powers the factor cannot exercise without authority; Nisbet, 15th Jan. 1848, 10 D. 361. The Court require, before authorizing the 294 Sl-KCIAI. OK KXrUAOIlDINAUY DUTIES, roWEUS, .<:<■. factor to exercise them, to be satisfied, by a report iu the usual way, of the cxi»eJiency whicli dictates the exercise of these powers; AuM, ."ith Feb. 18.")0, 18 D. 487. In that case it was remarked by the Lord Pn-sideut, " there is always u ditiiculty about such sales. Although we do grant the power, it does not necessarily grant a good title, therefore such a sale takes '^)lace under a certain disadvantage whicli may alFect the price, and in tliat way tlie property may not bring so much now as when the youngest daughter is of age, al- though there may not be any real advance in the value ; and that consideration is of more weight when the lady is ap- proaching the age when she will be able to act for herself. The petition was, in respect of the inexpediency of proceed- ing to sell in these circumstances, refused. In MacGeorge, 8th INlarcli 1850, 18 IX 7'J2, a factor had been appointed on the estate under a marriage-contract trust, which conferred no powers of selling, feuing, or bor- rowing ; but there was a clause expressly appointing the trustees, with consent of the wife, independently of the hus- band, " to employ and secure tlie trust-fund during the trust in any way she may desire, provided only that tlie trustees or a majority of them concur with her in opinion in regard to the prudence of so employing and securing the same." The wife wished to get tlie whole or part of the subjects, which constitutt.'d the trust-estate, disposed of on contracts of ground-annual, and the factor was authorized by the Court to concur with her in doing so, " and without the Court's special authority in each case being necessary." Obstacles arose to the disposal of the subjects in this manner, and the wife then desired to liave the subjects sold, because of an advantageous offer whi('h had been made for a part of them. The factor accordingly petitioned the Court to sanctit>n his concurring with her in .'telling the lot for which the offer had been obtained, anil also, I'lom time to time, the whole re- mainder of I he sul>ject.«« ; In I tht Court, while granting the SPECIAL OR EXTRAORDINARY DUTIES, POWERS, &C. 295 prayer so far as concerned the lot of ground for whic-]i an oifer liad been received, refused it quoad ultra. This condi- tion was moreover annexed to the authority granted — " the free balance of the price to be applied by the petitioner in such way that the children shall derive the just benefit of it, as the fiars of the property which it will represent." Where a trust-deed authorizes property to be divided spe- cifically, it is ultra vires to sell them, and the Court will not sanction such a course being adopted ; Keegan, 6th Feb. 1857, 19 D. 382. Where a trust deed appointed certain sub- jects to be conveyed to two parties on attaining majority, and the factor applied for authority to divide them and con- vey one-half to the elder party as she had attained majority, the Court found the course proposed incompetent, as the factor's duty was to convey to her a pro indiviso share of the subjects. On amendment of the petition, power to follow this latter course was gTanted ; Watson, 21st Nov. 1856, 19 D. 70. If his personal title be objected to, and he cannot other- wise borrow money and sell subjects, a factor on a trust- estate must make up titles to it, and that in his own person, on the ground of the relation in which he stands to the estate under his management, which is explained at the commence- ment of this chapter. In the great bulk of the cases above mentioned this power was given, but the proper course to follow seems to be that adopted in Fergusson, 14th Jan. 1836, 14 S. 213, where power was asked and granted in the first instance to sell what right was in the factor's person, leaving the responsibility of demanding a further title to the purchaser. If this view be correct, power to complete a title would not be granted, as a matter of course, with reference to the division of the estate among the beneficiaries, leaving it to some of them to insist on it. The reason of this is, that a judicial factor on a trust-estate has a good personal title to the heritable property, and where that is sufficient the 296 SPECIAL OK EXTKAOKDINAUY 1>UT1ES, I'OWEUS, &c. I'ourt rflusc to ulluw him to uuike up titles; ^rivciiziu, Ist Juuc 1S3G, 14 S. SaS : also Fc-rgussoii. 14tli -Ian. 1S3G, 14 S. 213. Wlicrc the debtor in u hiiitable security demauds that a title be made up in ordtr to his valid disehurgc or to a valid assiguiiieiit, the Court will grant authority to the factor to do so ; Priugle, 6th July 1841, 16 F. 1268 ; Caird, 9th Dec. 1848, 11 D. 232 ; and may also sanction his title being made up to other portions of the trust-estate at the same time. Smith, 17th July 1840, 8 D. 1220. But where a factor, in respect that some vassals demanded entries, asked power to make up a title to the whole heritage, it was refused, except in regard to the superiorities ; Boyd, 14tli July 1855, 17 D. 1115. Where it was necessary to oust from the subjects the truster's eldest son, who retained possession on his right of apparency with the intention of defeating his father's settlement, the factor appointed on the trust-estate got power to make up a title to these subjects; Smart, 29th June 1854, IG D. 1004 ; and in tliis case, an exception was made to the rule as to special powers being refused at ap- pointment, on account of the urgency of the circumstances. Where the steps necessary to complete a title are by raising an action — ejj., a denuding against trustees where they are superseded, or even a declarator and adjudication where the trustees arc all dead — power to do so may be given exjiressly if it be preferred, though that is not necessary, and, in fact, may prove troublesome should it afterwards be found expe- dient to adopt another and unauthorized methed of complet- ing the title; Wotherspoon, 15th Dec. 1775, M. 7450. A factor was authorized to take uj) a decree of adjudication in i i.plement, obtained by the last surving trustee against the truster's heir, and to complete his title, in Morison, 1st Dec. 1855, 18 D. 132. A Irust-disjtosition and settlement under which a factor was appointed conveyed certain subjects to the trustees for i>ehoof of the lifercnter, and at the life- SPECIAL OR EXTKAOKDINAUY DUTIES, TOWERS, &c. 297 renter's death (which had happened) to the fiars ; aud hence, when tlie factor applied for power to make up titles, the Court refused it, as the fiars were entitled to, and should complete a title to the subjects in their own persons, and thus, in so far as these subjects at least, put an end to the factory ; Watson, 28th Nov. 1856, 19 D. 98. Where a trust-deed authorizes a division of property or funds among certain parties, the factor will obtain the Court's sanction to his doing so at the proper time ; Arthur, 30th June 1846, 8 D. 943; Hamilton, 2d Feb. 1850, 12 D. 913 ; Meikle, 4th June 1856, 18 D. 988. Where the party, to whom the deed gave the liferent of part of the estate, produced evidence that she was entitled to succeed to the fee of the fund so liferented by her db intestato, the Court ordained the factor to pay over the fund — the party confirm- ing before extract ; Nisbet, 15th Jan. 1848, 10 D. 361. The making up of titles to and selling the partnership estates, although the subsequent granting thereof is almost implied in an appointment of a factor to wind up the con- cern, are only sanctioned by the Court upon cause shown in an application therefor ; FuUarton, 19 th June 1834, 12 S. 750. Factors w^hose powers are regulated by Acts of Parliament will obtain special sanction to any acts, out of the usual course, but within the limits of the statute, which may be shown to be necessary. Where, however, a factor on the estates of an expired statutory commission proposed to ap- ply the funds in his hands to debts incurred by the com- missioners, but these debts were for purposes unauthorized by the Act of Parliament, his petition was to that extent refused ; Myles, 13th Dec. 1855, 18 D. 205. 20.S CHAITEK IV CAUTIONERS AND ATTESTORS- The responsibilities of the factor or curator arise virtide officii^ and lie is bound to do diligence and to account for his intromissions, whether tliere is or is not a valid or effectual bond of caution ; but every factor or curator has to find caution. Cautioners for these officers arc in a position different from tliat of all other cautioners, even those for the performance of the duties of an extrajudicial office, although in some re- spects their responsibilities arc found to be analogous. The distinctive feature of a cautionary (»bligation for a judicial officer, other than a factor in a ranking and sale, is that there is no creditor therein at tlie time it is uiulertakcn, against whom exceptions can be pleaded, and the equities belonging to other cautioners can arise. The factor in a ranking and sale is not only proposed by ibe creditors at a meeting hold for the purpose, but their position and duties, as creditors in the cautionary obligation for the factor, expose them to ex- ceptions, which we shall see arc not open to cautioners for other officers; Pringle, 10th .Tidy 1834, 12 S. 918. But so soon as the party entitled to be creditor in the cautionary obligation ai)pears, the defences open to cautioners arc competent. This will happen, for instance, where a factor CAUTIONERS AND ATTESTUllS. 299 loco absentis has been in the management, and the absentee himself returns, or the absentee's heir, where the factor's appointment has determined by his death, obtains a title to the estate by service. Accordingly, where a party, while heir -presumptive to the absentee whom he came afterw'ards to represent, had made an agreement with the factor loco absentis to the prejudice of the cautioner, he was held to be thereby liberated in a question with that heir ; Lawson, 17th May 1837, 15 S. 930 ; see Pringle, supra, and Morison, 5th Dec. 1856, 19 D. 132. It would seem to be on this principle that the Court have proceeded in those cases, where they have delivered up the officer's bond of caution without a judicial audit, a discharge by the ward of the factor's intromissions being held to render that step unnecessary. These cases are noticed in our next chapter, in treating of the circumstances in which a judicial audit at the termination of office is dispensed with. In judicial cautionry, there is requisite to the constitution of the obligation not merely the consent of the parties thereto, but the approbation and sanction of the Court by some of its officers. The formalities attending the granting thereof find a place in our next chapter. A judicial cautioner is so chosen, in respect that he is as- certained to be properly qualified. He must be of full age ; Earl of Kinghorn, 6th Feb. 1672, M. 2075,— sui juris,— of undoubted solvency, — not conjunct and confident \\'ith the officer fur whom he undertakes — and resident within the jurisdiction of the Court; Davidson v. Kerr, 19th Jan. 1815, F. C. ; and Lord President's remarks in Leith v. Hay, 17th Jan. 1811, F. C. There may be more than one cautioner ; Ferguson, 21st May 1830, 8 S. 782; Stewart, 20th Feb. 1850, 12 D. 744; and other cases hifra. But where there are more than one officer, they will not be accepted as cautioners for each other ; Grant, 26th May 1848, 10 D. 1052. It is thouglit that there would now be some difficulty in getting 300 CAUTIONKHS ANK ATTESTORS. female cautioners passed, although two ladies were judicial cautioners in Melville, 8th Feb. 1838, IG S. 407. Until the bond of caution has been accepted by the Court, or the ollicial representing it, the cautioner may resile ; Stewart, 7th Feb. 178G, M. 2157. A cautionary obligation is challengi-able on the ground of nullity. In the above-mentioned case of the Earl of King- horn, 6th Feb. 1072, M. 2075, a bond was reduced on the head of minority and lesion ; and an informality — " there being no witnesses designed to his subscrijjtion" — led to the reduction of a bond of caution in Inues, 8th Feb. 1728, M. 2079. The fact of the signature of one of the obligants being a forgery, was held to liberate the cautioners in the recent case of the Scottish Provincial Assurance Company, 28th Jan. 1858, 20 D. 405. But challenges of bonds on these grounds must be by re- duction ; and even where the plea that a bond was null under a statute was jjroponed, the Court would not allow it to be impugned by the cautioner by way of exception, "but the Lords reserved action to reduce upon that ground prout dejure;' Finlay, 20th Nov. 1027, M. 2074. deduction is also the form of action, in which the cautioner can challenge a decree obtained against the principal ; lloss, 25th June 1840, 15 Jurist, 1290. ]^)()tli a reduction and a suspension and interdict were resorted to in Stewart v. Hickman, 1st Dec. 1843, D. 151 ; but there the reduction seems to have been unnecessary, as the ground of challenge did not touch the validity of the bond ; and, accordingly, in Totter v. Bar- tlxdonjew, 17th N(tv. 1847, 10 IX 97, where the challenge was based on a similar ground, there was only a suspension and interdict brought. Reduction was the action raised in the leading case of Railton v. Mathew, 14th June 1844, 3 Bell's Api.eals, 50; and afterwards, 30th Alay 1845, 7 D. 748. and 11th March 1S40, 8 ]). 747; where the nullity of th< bond was held to arise from the non-communication to th' CAUTIONERS AND ATTESTORS. 301 cautioiier of essential particulars by the obligee, although unintentional. On the other hand, an action of declarator and relief is the form in which the cautioner may try questions as to his riglit to determine his obligation with both the principal and the obligee ; and in that shape most of the cases under- noted arose for determination. Some objections, such as personal exceptions, it will be seen, are proponable by way of exception. The obligations, undertaken by the cautioner for his prin- cipal, vary according to the nature of the office to wdiich the latter is appointed ; but, generally speaking, the cautioner undertakes that his principal shall duly and faithfully ma- nage the estate put under his charge, hold just count and reckoning for all his intromissions, make payment to such person or persons as the Court shall appoint, and obtemper, fulfil, and obey the whole rules and regulations prescribed by the Court in the Acts of Sederunt passed by them ; and that during the subsistence of the office, or until his ap- pointment be recalled. The termination of office depends upon either circumstances personal to the officer — such as insolvency, absence ammo remanendi, death ; and these are treated of in our second chapter : or circumstances connected with the nature of the office itself, — such as puberty, majo- rity, sanity, failure of joint nominees, &c. ; and to these at- tention was directed in our first chapter. The limitations as to the endurance of the judicial ofiice imposed by statutes or Acts of Sederunt are mentioned in chapter third. The septennial limitation has no place in regard to cau- tionary obligations for judicial officers ; Ersk. iii. 7, 23 ; Strang, 5th Jan. 1707, M. 11005 ; Hogg, 13th June 1826, 4 S. 708 ; Gallic, 4th March 1836, 14 S. 647 ; Bremner (5th March 1839, 1 D. 618), 9th May 1842 ; 1 Bell's Appeal Cases, 280 ; see infra, p. 308. Where, in the discharge of his office the factor or curator 302 CAUTIONERS AS'n ATTESTORS. lodged an inventory, tlie cautittncr will l»c responsible for what is entered therein, with the exi-ej^tion of futnre debts; r.o.ules, 17th Jan. 1794, M. 2107; Ferguson, 21st May 1830, 8 S. 782. The cautioner is liable for interest on the same footing as his principal, without any stipulation, nay's Creditors, 23d Jan. 1711. ^\. 2097 ; Tluehanan, 13th Fei). 1847, 9 ]). 700. Cautioners are not liable except to those parties, who are iu fifiilo to demand an accounting for the estate, and ]»ay- ment of the balance thereon ; and the qualifications these parties must possess are noticed in connection with recall of the factorial management, in chapter second. The cau- tioner of the administrator-in-law of a pupil, who took up the estate in his ward's name by confirmation, was found to bo " bound for the father to the infant ;" Scott, 6th Feb. 1750, M. 2080; and this, as Ivilkerran remarks, "notwithstanding that Sir Thomas Hope's opinion (INfinor Practicks, 30. § 97) was, — for the defender said to be singular. — confirmed by the opinion of no other author, nor su])ported by antecedent practice, nor by any decision since." The principle of the case of Scott was afiirmed by the whole Court, in Biggar (erroneously P,cll) v. Carstairs, 17th Dec. 1842, 5 P. 318, where the cautioner in a bankru]»tcy was held to be res]>on- sible not merely to the creditois. but to tho bankrupt, and liable to be sued by him. On llie other hand, where parties had expedo confirmation ank ; and tlie rurator became bankrupt with them in his hands. lie was tliereafter seques- trated and discharged on a compositioti ; but in his seques- tration no claim was made by the cautioners in the curatory, nor by any otlier party, in respect of tlie sums in which the bankrupt was indebted to liis wards. Tlie curator bonis died before the composition on his debts was paid. It was only after his death that the cautioners took any steps in the matter. They then petitioned the Court, as it was for " the interest of all parties that the state of the cura- tory accounts should be distinctly ascertained, and the ba- lance due judicially settled and paid up, in order that the petitioners may be discharged of their obligations," to grant warrant for service on the curator's executrix, " and to or- dain her, within a short space, to produce in the clerk's hands all states of accounts, books, vouchers, and other papers in her possession relative to the said curatory ; and upon c<>nsi ATTKST0R8. uuliiuitoil aiul co-cxtensivo whU the estate, whicli might bo small to begin with, but, in the event of an accession of for- tune to the ward, might become hirge enough. Even assuming that the curator liaJ bad no riglit to sell the ward's heritage, his acts in this resjjcct were to be viewed as acts of mismanagement, and for his mismanagement his cautioners were liable. Tlie receii)t and retention in his hands of the price received was likewise an act of unfaithful management. That act was an intromission by the curator, for which the cautioners had obliged themselves that he would count and reckon, and make payment. The manner, in which the intromission was brought about, did not make a dillcrence, for, however obtained, the funds in the curator's hands were undoubtedly the ward's means and estate. The failure to lend out the estate was an act of mal-ad- ministration, for all the consequences of which the curator and his cautioners were liable. At the very least, the wards were entitled to have the accounts stated on the same foot- ing as if their funds and estate had been duly lent out ; and as it was impossible to say how much of the produce the curator might have capitalized, the wards must have the benefit of such doubts, and interest fell therefore to be accu- mulated annually. Legal interest would further run until payment. The hardship of such a decision to the cautioners was of no moment, comjiared with the hardship which an opposite result would entail on the heli»less wards whom the princi- pal had defrauded. The cautioners might, indeed should, liave ranked on the bankrupt estate of the curator, in order to try and obtain something for the ward, and so operate their own relief to some extent. As the Lord President re- marked (4 S. G'Jo), " The cautioners are bound to look after the proceedings and conduct of their principal. If ihoy had conceived that he was acting wrong, they might have complained to the Court, and have had him restrained." CAUTIONERS AND ATTESTORS. 307 The defenders in the succeeding case of Kerr and Bremner (see references, suiwa, p. 303) unsuccessfully attempted to distinguish it from the case of Eaton v. Cowan on several grounds. The leading distinction attempted arose on the terms of the bonds of caution, and it was argued that thebond in the latter case could not be enforced, as it was imperfect. The cautioner's obligation was only that the principal would do exact diligence in performing his duty as factor loco tutoris, and there was no obligation that the factor would count and reckon and make payment of his intromissions, as was cer- tainly usual in such bonds (Juridical Styles, 3d edit., 1826, ii., pp. 78-80). The obligation undertaken imported no more than that the officer would carefully observe and use the means ordained by law for recovery of debts due to the wards. But this objection was overruled, because the obli- gation was not only to do exact diligence, but " to do exact diligence in performing my duty as factor loco tutoris (cu- rator bonis was the proper name, as the ward was a lunatic) foresaid, and that in conformity to and in terms of the said Lords, their Act of Sederunt thereanent, in all points, and the daily practice of Scotland ;" and this reference to the obligations of the Act of Sederunt 1730 (see Chapter III.) removed all ambiguity. In this case, the factor had not complied with any of the provisions of the Act of Sederunt. He had never given up an inventory of the estate, or rendered an account of his in- tromissions ; and, although he survived his cautioner, he had died in debt to the estate. This state of matters was only discovered on the appointment of another judicial guardian to the ward, and he raised an action of count and reckoning and damages against the parties, who had had vitious intromissions with the estate of the cautioner for his predecessor, and also against the cautioner's only child and his tutor. This action was raised at the distance of thirty-one years u2 30S lAUTIONRUS ANP ATTESTORS. al'tc'V the (lito tif tlio Itond, ami tln' (kfciulers argucJ that, as the oblii;atiun of the cautiuiicr was altoj^cther of uncor- Uxin amount, anil undertaken for an ofHcer whose duties were to he merely temporary, this was an exception to the rule which made successors liable for cautionary obligations, such being not contingent or prospective obligations, but ab imtio definite and certain. But, at any rate, the defend- ers were not the cautioner's " heirs, executors, and succes- sors," as in the action they were called as vitious intromitters. The Court of Session, on Gth July 1S32, and the House of Lords, in affirming that judgment on 11th July 1837, not only repelled the objections pleaded to the form of the bond, and the pleas on which the defenders contended they were not liable, but held tliat the bond was valid and l)inding on the cautioner to the extent of the whole intromissions, adminis- tration, and management of the principal in his character of factor loco tutoris (curator bonis), and that consequently the cautioner was at tlic time of his death liable to that ex- tent under his cautionary obligation. On the applicability of the septennial limitation under the Act 1G95, c. 5, and the several liabilities of the defenders quoad ultra, the House of Lords remitted for the opinion of the whole Judges of the Court of Session. This opinion was given on 5th March 1839. Their Lord- ships had no difficulty in holding the plea on the statute to be inaj)plicable, as wchave already mentioned (.v?/^;r(7, p. 301), and the House of Lords concurred in this opinion on 9th May 1842. On the other points of the case, some difference existed in the results arrived at by the two tribunals ; but, on thf substantial points of law involved, they wore at one. The defenilers contended, both in the Court below and in the House of Lords, that the debt covered l»y I lie bond con- sisted only of the intromissions of the officer during the life- time of the cautioner. Not only was there a presumption in th»ir favour from the office being mondy temporary, but CAUrrONEKS AND ATTESTORS. 309 tlie cautioner's death was the latest period to which the bond could be stretched, as the defenders never intimated their continued liability for the deceased cautioner's obliga- tions. If this principle were correct, the arrears due at his death were either wholly or partially extinguished by the pay- ments, on account of the ward, which the oflficer subsequently made. And further, on this assumption, the defenders could not be competently decerned against, as the media conclu- dendi were not only different from, but inconsistent with it. The result of the former judgment, however, was to render it no longer doubtful that it was quite wdthin a per- son's power to bind his estate after his death, and that this had been done so effectually by the cautioner here. His bond was for the performance of the duties of an office, which was to endure during the ward's incapacity, or until the curatory \vas terminated by the factor's death, or the recall of his appointment. Warrandice was a similar obligation, and it endured until eviction, wdiether wdthin or beyond the life of the obligor. The defeasibility of cautionry introduced no difference in principle, and certainly not w^here, as in this case, no attempt to terminate the obligation was made, and the cautioner's death did not operate as such ipso facto ; Commissioners of Excise v. Mitchell, 16th Jan. 1735 (re- ported by Lord Elchies, voce Cautioner) ; Erskine, 22d Dec. 1739, M. 9002 ; University of Glasgow v. Miller, 18th Nov. 1790, M. 2106, and Bell's Cases, 141 ; Commercial Bank v. Callender, 4th Feb. 1801, Hume 88 ; Paterson v. Calder, 5th July 1808 (reported in Bell's Corns, i. 369). The fact that the cautioner's successors were intromitters w^ithout a title did not relieve the estate intromitted with. The defenders, in pleading that, were attempting to derive benefit from their own delict, whereas it had subjected them in liability for the cautionary obligation of the deceased without any limita- tion ; Ersk. iii. 9, 35, 52, and 53 ; Loch v. Menzies, 5th Dec. 1729, M. 9864. One defender was a minor and in a different 310 CAUTIONERS AND ATTKSToKS. position tVom tlic others, as lie liad nut liinisclt" conmiittecl any delict, but even lie was liable quantinn htcratus, and it even miglit be that the vitious intromission of his guardian made him further liable. These results obviated all objec- tions to the form of the summons — its subsumption was framed on a correct estimate of the law, — and the consistency of it as a whole thus preserved. To these views the House of Lords gave effect in their judgmcnt^ — thus ailirming the decision of the Court of Session on the points of law. But in order to do so there fell to be repelled an argument very seriously maintained by the defenders, to the efiect that the action was barred by neglect on the part of the petitioners for the officer's appointment, — they were bound to attend to the regular performance by the factor of the duties he had undertaken. The most serious answer to this was, tliat the action against the defenders was not raised by the parties amenable to the exception, but by the successor of the defaulting oflicer. The lunatic having died, pending the appeal on Tith June 1839, and her next of kin having sisted themselves in place of the curator bo7iis, the exception of personal bar was renewed by the defenders more hopefully. On the ground, however, that the new pursuer must be held to be eadcm persona cum defuncto, and as in a question with the ward or her successor the defenders' exception was founded on the conduct of tliinl jiarties. llnir jdea was ex- cluded ; but even though relevant, the omission by relatives of the ward, and even by the pursuer, to c(;ntrol the guar- dian's actings through a scries of years, does in no way affect the liability of the cautioner, for the oflicer was not their servant, they were not creditors in the bond, and they owed no duty to the cautioner in respect to the principal, and no neglect of theirs injured the cautioner's "rights and equi- ties." Such are also the principles of the case of Moreland, 4th Dec. 1S20, 8 S. 181 ; and also of Mein, 10th Jan. 1830, 8 S. 34fi, approved of in MT;it:iT;nt Htli April 183;'). 1 S. CAUTIONERS AND A'l'TESTORS. 311 and M'L. 553 ; see Ker (Lcith Bank) v. Bell, 1st Oct. 1831, 5 W. and S. 703 ; and also infra. We saw, however, at the beginning of this chapter, that in some cases personal exceptions in favour of the cautioner do arise. In practice, cautioners for judicial ofiicers are bound con- junctly and severally with them (Act of Sederunt, 13th Feb. 1730, § 11), and they renounce thereby the benefit of dis- cussion and division in questions with parties entitled to enforce their obligations, although they retain, as against the officer and against each other, where there are two or more cautioners, their right of total or of pro red a relief; Bell's Coms.i. (othedit., 1826) 347. Were the bond taken otherwise, the usual rules as to the discussion of the principal debtor would obtain ; Wishart, 12th May 1837, 2 S. and M'L. 564. Although the cautioner thus relinquishes the right of dis- cussion, it is only on the failure of the officer to discharge his obligations that the cautioner is bound in fulfilment. Thus, for instance, the cautioner or, if he be dead, his repre- sentatives, cannot be called on, before the officer's default is ascertained by adjustment of accounts, or otherwise, to set apart beforehand ]a sum of money to meet a'probable claim, as that would not only be extending the legal effect of the cautionary obligation, but be giving a security by deposit of money in room of a security by personal obligation ; Antro- bus V. Davidson, 12th Dec. 1817,^3 Merivale 569 ; Burge on Suretyship, 328. After a debt against the officer is as- certained, the cautioner must on his default pay or consign. The Court, however, have the power to order consignation of a fund, which has been improperly dealt with by the officer by being removed beyond their jurisdiction ; Account- ant of Court V. Geddes, 29th June 1858, 20 D. 1174 ; but the Accountant of Court (Accountant v. Baird, 29th June 1858, 20 D. 1176) has only power to order consignation of a balance brought out on an accounting, as provided in sec- tion 16 of the Pupils Protection Act. 312 CAUTIONERS AND ATTKSToHS. It is doubtful wliethcr sections 8 and 9 of the Mercantile Law (Scotland) AiiK'ndniout Act (10 and 20 Vict., c. GO) apply to judicial cautioners, as their ell'ect seems limited to bonds for tlebts, and they do not seem to include obligations ad facta pnstunda, or for the performance of the duties of an office — the latter of these the more especially, that there is no creditor to whom such cautionary obligations aro granted. Section 9 provides, that, " where any person shall after the passing of this act become bound as cautioner for any princi[)al debtor, it shall not be necessary for the creditor to ichom such caiilionari/ obliijation shalt be (/ranted, before calling on the cautioner for payment of the debt to which such cautionary obligation refers, to discuss or do diligence against the i»rincipal delator as now required by law ; but it shall 1)0 competent to such creditor to proceed against the principal debtor and the said cautioner, or against either of them, and to use all action or diligence against both or either of tliem wliich is competent according to the law of Scotland ; provided always that nutliing herein contained shall i)rcvent any cautioner from stipulating in the instru- ment of caution that the creditor shall be bound before pro- ceeiling against liim to discuss and do diligence against the principal debtor."' Section 9 is ratlier wider in its scope, and might include the cautioners for judicial officers, were it not held as to be construed in connection with the preceding section. It provides that from and after the passing of the act, " where two or more parties sliall become bound as cau- tioners for (in)/ drb/or, any discharge granted by the creditor in such debt or oblujation to any one of such cautioners, without tlie consent of the other cautioners, shall be deemed and taken to be a discharge granted to all the cautioners ; but nothing herein contained shall be deemed to extend to the case of a cautioner consenting to the discharge of a co- cautioner who may have become bankrujit.' Whatever may be the c(Tt.ct of these enactments, they are limited to obhga- CAUTIONERS AND ATTKSTOUS. 313 tions undertaken after the date of tlic Act, 21st July 1856 ; Church of England Co., 17th July 1857, 19 D. 1079. Acts of Sederunt passed after the date of the cautioner's entering into the obligations cannot (unless it Lc under the provision of section 2 of the Pupils Protection Act, 12 and 13 Vict., c. 51, after mentioned) aifect him so as to increase his responsibility. In some cases, however, a provision is inserted in the bond that the officer shall be bound to dis- charge his office in conformity with Acts of Sederunt to he made by the Court ; and if, in bonds by the cautioners of a factor loco tutoris and absentis, and curator bonis, caution is found " for his duly accounting for his intromissions and management, and observing and performing every duty in- cumbent upon him as factor, in terms of the rules prescribed or to be prescribed for the discharge of his office" — the words of the second section of the Pupils Protection Act — the offi- cer and cautioner, it is thought, would be so bound. That Act is applicable to factories in existence at its date, and defaulting officers and their cautioners are under it liable in penal interest and other penalties ; see cases in last chapter, and also Accountant of Court v. Wilson, 12th Feb. 1852, 25 Jurist, 296 ; and Grant, 17th June 1828, 6 S. 982. Such an obligation is one of unknown extent, and the undertaking it should be well considered by the cautioner, equally wath the principal. The obligatory nature of the condition where it has occurred has never been questioned, and bonds con- taining it were undertaken in Duncan v. Porterfield, 13th Dec. 1826, 5 S. 102 ; Eadie v. How, 3d Feb. 1829, 7S. 356 ; Macfarlane, 6th March 1857, 19 D. Q,::)Q. In Bonar v. Mac- donald, 9th August 1850, 7 Bell's Appeals, 379, where the cautioner for a bank-agent raised the question with the bank — the creditors in the bond, — it was held that he was freed from liability, as the bank had altered the responsi- bilities of the officer since the date of the bond, although (he loss, in respect of which it was sought to make the cau- ;^14 CAITIONERS AND ATTKSTOHS. tioiier liable, ilitl not arise diivetly out of tlie alterations; see also Houston, 22a May 1829, 3 W. ami 8. 392. The Puj)ils rrotection Aet not only applies to all factors loco iutoris and absent is, and curators bonis appointed after it passed (28tli July 1849), but lias, as regarded parties ap- pointed such before that date, ^vhose offices subsisted, a retrospective effect. Section 22 enacts that the provisions as to banking funds were to apply to these subsisting factories from and after 1st June 1850, " and in all other re- spects the whole provisions of this act shall take effect from and after the passing thereof in regard to factories con- stituted before the passing of this act, in so far as the same admit of application thereto." The extent of the cautioner's liability being to be deter- mined by that of the principal, we must refer on this sub- ject to tlic immediately preceding chapter, where that sub- ject is fully discussed. We have already in this chapter treated of the termination of the cautioner's liability by expiry of the office or recall of the appointment, and wo shall presently come to consider how it can be terminated by the cautioner himself. The extent of his liability de- pends in some cases on considerations, which do not enter into questions of liability of the principal. Thus, where a party is creditor in two debts by the same individual, but he has a cautioner in one of them, the latter is entitled to demand that an indefinite payment by the debtor to the creditor shall bo imputed proportionally to both, and not to the unsecured debt alone ; Duchess of Buccleuch, Feb. 1725, M. 6807. Ftirthcr, it is only for intromissions by the ] principal in his cai)acity of officer that the cautioner is liable. Cowan's Ilosi.ital, 23d Nov. 1832, 11 S. 81 ; but the lialnlity cvtends to foreign funds recovered by tlnj officer, although he have used for that purpose another title he possessed, as that was ].art of his official duty, Ferguson, 21st May 1830, 8 S. CAUTIONERS AM) ATTESTORS. 315 782 ; Simpson, 1st Feb. 1855, 17 D. 314. Where a bank bad made advances to the principal debtor, on drafts in violation of the stamp-laws, the bank were found not entitled to impute thereto payments made by liim, but were bound to apply them in relief of his cautioners ; Swan, 21st Nov. 1839, 2 D. 78 ; see also Lawson, 17th May 1837, 15 S. 930. If the agent of the creditor in an action against the principal take decree for expenses in his own name, the cautioner can- not, in the event of proceedings against him, plead compen- sation as regards these expenses of a debt by the agent's client ; Cullen, 27th Jan. 1852, 24 Jurist, 177, 1 Stuart, 327. Questions may arise between the cautioner for the judi- cial officer's intromissions and other cautioners who may, in consequence of a demand to that effect by the Court, have afterwards interposed additional security. Thus where an officer had lost his vouchers, additional caution was or- dered to be found by him before his accounts, as regards the un vouched entries, were passed, Bruce, lltli June 1709, M. 16327 ; but in that case, it might be contended that the new cautioner was substituted for the former one, whose obligation was then discharged. In the case of Win- ton, 25th Jan. 1662, M. 16267, an officer, in violation of his duty, had acquired right to a debt due by his ward, and he was ordered to find caution to refund ; and there it would seem more likely that a collision of interest might arise. Such a malversation would not now-a-days be so lightly treated by the Court, and they would remove the officer in fault. The cautioner for his own sake should, on learning of the prhicipal's malversation, apply for the recall of his appointment, and get his responsibility then and there deter- mined. We saw in Chapter II. tliat the cautioner is in titulo to make such an application. There is no instance in the books of a cautioner for a judicial officer having undertaken an obligation for his prin- cipal's prior as well as future intromissions; althongli, if 316 CAUTIONERS ANI> ATTKSTOHS. such an extension of tlie obligation weiv (.Icarly expressed, effect Would be given to it ; Bell's Conis. i. (5tli edit., 182G) 30G. The cautioner for a trustee on a se(iuestrated estate, who failed in debt to the estate, was found liable in what sums were due to the estate at the date of his bond ; and as these sums could not be said to have been lodged in bank as provided by the Bankrupt Act, the cautioner was found liable in tlie penal interest due b}' his principal pos- terior to the date of his bond, although he was not liable for the trustee's previous misconduct ; Grant, ITtli Juno 1828, 6 S. 982. The obligations undertaken by cautioners they are en- titled to have terminated, provided third parties are not to bo prejudiced by the step. The desire to be relieved from the cautionary obligation, it can be easily conceived, will bo strongly entertained by the representatives and successors of cautioners, for, though personal feelings mayhave led to their interposing, Ihesc will not operate as regards their succes- sors. And though neither the cautioner nor his successors can suddenly withdraw from responsibility, they may give notice of their resolution to do so, and call upon the princi- pal to make the necessary arrangements, by getting new caution or a successor in the ofllcc, for obtaining their dis- charge, at least relief of all future responsibility ; Bell's Corns, i. 3G7 ; Taylor, 3d July 1818, Hume 114. The cau- tioner can present an application to have the officer ordained to lodge his acccnints up to its date, and for the adjustment thereof in order to his exoneration of past intromissions ; Moreland, 4th Dec. 1829, 8 S. 181 ; Dixons, 2()th Dec. 1833, 12 S. 248 ; Eaton v. Cowan, supm (see also M'Ewan, 27th June 18o7, 19 D. 930, and other cases in Chapter II. regard- ing recall of appointments). The cautioners of tutors and curators could get free, if they ap])rehendf'd danger, by raising an action against them, and lalliiig the wards for their interest, and thereby de- CAUTIONERS AND ATTESTORS. 317 manding to be relieved in future ; and, in the event of de- cree being pronounced in their favour, the tutors and cura- tors liad to find new caution, or else they were removed ; Welsh, 14th Feb. 1778, M. 16373. The cautioners for a bank-agent were held entitled to bring an action, and to in- sist on the principal's relieving thorn of their obligation on his account, in Taylor, 3d July 1818, Hume 114. The cau- tioners for a collector of taxes brought an action against him, although they did not allege he was vergens ad inopiam, to have it found and declared that he was bound to relieve them, and they were not only found entitled to insist that their obligations should not be farther extended , but the de- fender was ordained to show tliat arrears were discharged, and to condescend how he proposed to effect the cautioner's relief from future liability ; Kinloch, 13th June 1822, 1 S. 491. The cautioner for an executor was found entitled to relief from his principal, and that relief was accordingly afforded by the executor's accounting for his intromissions, paying the balance thereon, and obtaining a discharge ; Simpson, 23d Feb. 1826, 4 S. 492. The form adopted by the cautioner for tutors -dative, whose office had expired by the death of one of their num- ber, was an action against the surviving tutors, the repre- sentatives of the predecessor, and the pupil ward and his tutors and curators generally, concluding for exoneration from his bond ; and in terms thereof he obtained exonera- tion and discharge, in Scot, 7th April 1834, 7 W. S. 211. This decree stood this cautioner in good stead, for, although the ward and his curators sought to reduce it, and to subject the cautioner for intromissions which the surviving tutors had had after its date, the House of Lords, reversing the judgment of the Court of Session, found him not liable after expiry of the tutory. The Court will, wlicre a new bond reported to be suffi- cient is produced, and they are otherwise satisfied, ordain 318 CAUTIONEUS AND ATTFSTOUS. the old one to bu given u[i in ;in iipidioatiini for that jair- pose ; Bett, 24th Dec. 183G, 15 S. 313. In another snspen- .sion, the cautioner, on new and sati.>^factory caution l»eing found, was relieved on a joint minute by tlic parties; Gallo- way, 20th Jan. 1841 . :> 1 >. :'.!)3. Such a course could, in oidy a few cases of cautioners for olficers, be safely adopted, as the parties who can discharge them cannot be certainly known. Where a party bound to warrant subjects, as of a certain value at a date specified, thereafter called upon the debtors in the loan to relieve him and they refused, he took an onerous assignation in his own favour of the debt, and proceeded to sell the subjects ; and although the debtors disputed the cautioner's right to claini discharge of liis ol»- ligation, and attempted to interdict his proceedings, the Court held him entitled to operate his relief in the aforesaid manner ; Gray, 24th Nov. 1847, 10 D. 145. A cautioner had money put into his hands for a si)ecial purpose by the prin- cipal debtor, but before that purpose was fulfilled he died, and the mandate which aftccted the money consecpicntly fell. In a question with executor-creditors of the mandant, it was found that retention was competent to the cautioner of the funds in his hands, until he was relieved of his cautionary engagements; i\Iurray's Crs., 19th June 1744, M. 262G. Alleged counter-claims cannot bo interposed by the prin- cipal again.st the cautioner's claim for relief; I\f'Neill, 28th Nov. 1826, 5 S. 44. Where the cautioner defended an action against his principal and himself, and lost it, but his de- fences were fair and reasonable, he was held entitled to claim relief of these expen-ses, as well as of the obligation generally, from the principal ; llannay, 20th Nov. 1840, 3 D. 08. The cautioner may, where he advances the expenses of litigation carried on in the principal's name and he succeeds therein, appear in tb. process and have decree therefor in his own name; Henderson, 5tb Dec. 1828, 7 S. 142. It is not, how"Vfr. iti all rirc mnstaiiros lliat the fanlioiicr CAUTIONERS AND ATTESTORS. 319 is entitled to demand the determination of his responsibili- ties on account of his principal. Thus, where a party had become cautioner for the payment of an annuity during a certain length of time, but two years after undertaking this obligation he brought an action of relief against the princi- pal debtor, he was found not entitled to succeed in it, be- cause, not only had he at granting the bond obtained heri- table security, the value of which remained unchanged, but the obligation was for a definite period, and, besides being- only shortly current, was for a constantly decreasing amount ; Spence, 13th Dec. 1834, 13 S. 199. Although a clause consenting to summary diligence is in practice inserted in all bonds for judicial officers, the inde- terminate nature and unlimited extent of the risk run, to- gether with the absence of all special stipulations how any balance can be constituted and ascertained so as to authorize diligence, seem to point to an action or other judicial pro- ceeding, as the only means of liquidating all the claims against the cautioner ; Bell's Coms. i. (5th edit.) 364, 367. A report to the Court on this subject was made by the Deputy-Keeper of the Signet in Fisher, 2d Dec. 1828, 7 S. 97. He then reported that " there are many instances of bonds by parties and their sureties containing obligations of unlimited amount, such as bonds for factors, tutors, and curators, &c., in which there is a clause of registration authorizing letters of horning. When the party, in whose favour such bonds have been granted, wishes to proceed against the obligants, the practice is to institute an ordinary action for payment of whatever sum may be alleged to be due under the obligation." On the grounds, on which that case of Fisher was decided in favour of the chargers on a re- corded bond, and relative signed but unrecorded state, — that the " introducing into the deed a consent by the granter to bold a subsequent statement ascertaining the amount of the debt to be a sufficient constitution of it, to the eff'ect of autho- ?.'20 CAUTIONERS AND ATTESTORS. rizing the JiligeiKC," — it would lie quite competent by spe- cial stipulation to provide for summary diligence on a bond by the cautioner for a judicial ofticer. Whether the enact- ments of the Pupils Protection Act (12 and 13 Vict., c. 50) are sufficient for this purpose will afterwards be subject of consideration. Irrespective of that act, it would seem that, under the present form of bond, there is no mode other than an action for constituting the debt against the obligants, and that the clause authorizing summary diligence is necessarily inopera- tive. But there is one case which seems to favour the com- petency of summary diligence. In Tate v. Pringle, Cth July 1832, 10 S. 772, the creditors in a ranking and sale, having got the factor's accounts audited, and a balance of L.1G(33 as due thereon ordered to be consigned, petitioned the Court for a warrant on the clerk to transmit the bond of caution to the record of deeds to be recorded. The cau- tioner opposed, but it does not appear that the Court then decided the competency of a charge on the bond, for, as Lord Cringletio remarked, " no harm is done by ordering tlie bond to be recorded," and the Lord Justice-Clerk stated, that " the only ipiestion here is, if the creditors are entitled to have the ])on(l, to be able to put it on record. I think they are, but Pringle (the cautioner) will not thereby bo precluded of any plea competent to him." The Court ac- cordingly granted warrant for delivering up the bond to be put on record. A charge, however, was given on the bond after it was recorded, as appears from a suspension having been brought by the cautioner (reported as Pringle v. Tate, 17th Nov. 1832, 11 S. 47). Lord Moncrcilf, on ordering the bill to be answered, issued a note, stating that he was inclined to think that the chargers should liave proceeded against the cautioner by acti(jn, and not by diligence. The note wa.« pa.<c- CAUTIONERS AND ATTESTORS. 321 tent ; yet his Lordship and the other Judges held that there were such special circumstances in tliat case as to relieve them from the necessity of deciding the point. A record was then made up in the suspension and interdict, and on 10th July 1834 (Pringle v. Tate, 12 S. 918), the Court, in re- spect of the omissions on the part of the creditors, who were parties to the factor's appointment and to the ranking and sale, liberated the cautioner. We took occasion in the be- ginning of the chapter to explain that, in respect of the ob- ligations incumbent on the creditors, a factor in a ranking and sale was an exception to the general rule, that during office there were no obligees in judicial bonds of caution. There were dicta in Stewart, 20th Feb. 1850, 12 D. 744, favourable to the view, that summary diligence against cautioners for judicial officers was competent ; but then they were coupled with an expression of opinion, that cautioners wlio were made parties to the accounting under a petition for discharge could be decerned against therein. In this way the diligence against the cautioner would proceed upon a decree of Court, and not upon the registered bond. This course saves the necessity of any separate action for consti- tuting the obligation against the cautioner, and is what un- doubtedly ought to be generally adopted in practice. In the case of Stewart, the creditors attempted to stop the accounting for the estate under judicial management, by intenting reduction of their bond ; but the Court held that it could not do so, and found them liable in the ex- penses of discussing the point ; see § 16 of the Pupils Pro- tection Act. The Pupils Protection Act (12 and 13 Vict., c. 51) con- tains a number of provisions as to the rendering of accounts, fixing the balances thereon, seeing to the deposit of the funds in bank, and the protection by consignation of such part of the estate as may be in jeopardy ; the Accountant of Court being an officer thereby created with the view of X 3*2*2 CAUTIONERS AND ATTESTORS. enforcing the act's provisions. It is proper to remember, that all judicial officers arc not embraced by the act, but only factors loco tutoris and ahseniis, and curators hoiiis, ^[orisou, 21st Feb. 1857, 19 D. 5U4 ; but then it is declared by section 22, that after 1st June 1850, the act's provisions as to banking money shall apply to factories subsisting at its passin,ic (28th July 1849) ; " and in all other respects the ^Yhole provisions of this act shall take effect from and after the passing thereof, in regard to factories constituted be- fore the passing of this act, in so far as the same admit of application thereto." One of these provisions — and a most important one for cautioners — relates to informal settlements in factories constituted before the passing of the act, and is contained in the 23d section. " Tliat any settlement made of any such factory, 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 farther proceedings therein." And if in any such factory, altliough there has been no settlement at all, the Accountant shall be satisGed that no benefit is to be derived by the parties interested from further proceedings, and none of these parties insist in any such, he is empowered to stat< in the annual report he has to present under the 18th se( - tion, tljat further proceedings are inadvisable. The general nature of the Accountant-General's duty is defined by the 10th section : — lie "shall superintend gene- rally the conduct of all judicial factors, and tutors, and cura- ti^rs coming under the provisions of this act already ajipointed, or to be hereafter appointed, and shall sec that they duly ob- serve all rules and regulations affecting them for the time." The most special, and certainly not the least important duty the Accountant bus to i)erform, is that entailed by section 11, viz. — as soon as the insolvency or death of a cautioner comes to his knowledge to " require new caution to be found," and its performance, although it in no way affects CAUTIONERS AND ATTESTORS. 323 the responsibility of a cautioner's representatives up to tlie moment when another surety is substituted, will secure tlieir protection from responsibilities, unknown in most in- stances until the demand to meet them is made. It is not necessary here to enter into further detail of the duties of the Accountant, and it only remains to be seen whether there is any provision, which expressly or by im- plication authorizes summary diligence to proceed, where, prior to the act, as we have seen, it would have been incompe- tent. By section 2, it is provided that the inventory and rental to be lodged on entering upon ofl&ce, when adjusted and ap- proved of by the Accountant," shall be signed by him and the factor, and shall form a ground of charge against the factoi' ;" hut as the word ^^ charge" is here immediately connected with "account of charge and discharge," and in that connection has a known and recognised significance, and as it is almost absurd to think of diligence proceeding for the total amount in the inventory of the estate without the deduction of ne- cessary expenses and disbursements, it is not here intended to mean the step of diligence which in legal language is known as a charge. Anyhow, the signed rental is to form a ground of charge only against the factor, and not against the cautioner. The fact however that, instead of the words " ground of charge," there are in section 12 the words " rule i>f charge," applied to the signed rental, shows that they are not intended to affect the prior law as to summary diligence. In no other sections are the words referred to again used. The Act of Sederunt of 13th Feb. 1730, in section 2, ap- pointed the factor to lodge a rental, " to the end the same may be examined, and the said factor charged thereby," but this has never been quoted as authorizing diligence. Sec- tion 13 of the Statute provides for an annual audit, at which the Accountant is to fix the commission, and to strike the balance, and unless this audit is objected to, it is further enacted by section 15, it "shall be conclusive against the x2 3*24 CAUTIONERS AND ATTKSTORS. factor and his cautioner ;" while it is thereby further pro- vided, " that at the audit of tlio factor's accounts at tlie ter- mination of his factory, it shall bo competent to the factor jind his representatives, or to any succeeding factor, or to any parties beneficially interested in the estate, to enter upon such matter of objection" as may have been reserved, as there- in provided for, or as may have been already disposed of ; " but if the same has been decided by the Lord Ordinary or the Court, the decision shall not be opened up, except upon cause shown." As the proceedings here indicated as to be adopted are inconsistent with general notions regarding en- actments, having reference to suspension, as the means of stopping summary diligence, it is thought that the use of the word "conclusive" would not entitle — even as regards thefac- tor — any i)arty to resort to summary diligence on the bond. Section IG relates more especially to cautioners ; but it contains no express enactments as to the competency of sum- mary diligence against them on the bond, and there are no expressions which, by imidication, can be made to have thatelfect, the am])iguous word " conclusive" not being even used in it. The 17th section, in like manner, makes no al- teration upon the legal position of a cautioner, although if, in virtue of its provisions, a party beneficially interested in the estate, or a succeeding factor, appear and oi)en up any question on the accounts, " and such question shall bo opened up and decided, the judgment, if pronounced between the factor and a party beneficially interested, shall be final and conclusive, as bclwcen Hum and their representatives ; and if pronounced between the factor and succeeding factor, shall be Jinal and conclusive against the factor and the estate." The determination of the exact meaning and effect of the last- mentionetl provisions we cannot attenjpt, as the framcrs of I he measure must have proposed them as problems ; and on these the ingenuity of our judicial functionaries and the legal profession has not yet been brought to bear. CAUTIONERS AND ATTESTORS. 325 But not only does the act refrain from dealing with sum- mary diligence on bonds— it enables the Court in every extremity to interpone its authority by decerning against defaulters reported to it, and thus to furnish the means of a more competent and as speedy procedure against the factor (Accountant of Court v. Wilson, 12th Feb. 1852, 25 Jurist, 296), and it may be, but this is more doubtful, also against a cautioner or the representatives of a cautioner, for section 20 provides " that the Accountant shall at all times, when re- quisite, report to the Lord Ordinar}^ or the Court any dis- obedience of any requisition or order, and any misconduct or failure in duty on the part of a factor, or any claims against a dismissed factor' or a factor's cautioner, or against the repre- sentatives of a factor or cautioner deceased ; and it shall be competent for the Lord Ordinary or the Court, on the Ac- countant's report, to deal immediately with the matter as accords of law." This clause would not at any rate warrant any decerniture without previous intimation to the parties reported against, at least if they were different from the factor, for without a special enactment to that effect such a proceeding w^ould not be "as accords of law ;" Lumsden and others (Liquidators of Western Bank), 14th Dec. 1858, 21 D. 110. Accordingly, in Accountant of Court v. Geddes, 29th June 1858, 20 D. 1174, the Court, having pronounced an order on report of the Accountant, directed it to be served on the defaulting officer and his cautioner, " under certification that procedure will ensue in case of default." But it might be held, and the Court would not consider themselves precluded from holding, that as regards the factor they might proceed to deal more summarily, for under § 19 of the act the Accountant has, previous to re- porting him as a defaulter, to give notice to him or his agent, and he must lodge objections to the requisition or order within forty-eight hours after receipt of such notice. As tutors-at-law are under the operation of the Act in 326 lALITlONEKS AND ATTESTOHS. precisely the same way as the judicial officers to whom it applies, the procedure adopted in Baird, 21tth June 1858, 20 D. 117G, is an illustration of the manner in which ol)jec- tions to orders of the Accountant, to which he seeks to have the Court's authority interponed, may be raised and disposed of, when objection is taken to their doing so. If not taken at that stage suspension would seem to be competent, for there is no positive exclusion of this remedy cither as regards the factor or cautioner, at least as regards the latter, because any declarations as to judgments being final and conclusive, which all judgments of the Court of Session are until chal- lenged (sec 6 Geo. IV., c. 120, § 21, and 20 and 21 Vict., c. 56, § 6, and besides review by suspension or reduction is not made incompetent, as is appeal in reference to the final de- cisions mentioned in § 7 of the Pupils Protection Act), are not made to include cautioners. Viewing suspension as competent, at least to the latter, it is proper to notice some cases bearing on the point, whether it would, in respect that the Accountant has power (as was done in Baird, supra) to order consignation, be competent to pass the note on caution. Thus, where a bond bore that suspension was only to Ik) com- petent on consignation, it was held not to be an absolute bar to suspension on consignation, Bank of Scotland, 27th June 1815, F. C. ; and Professor Bell remarks, that " this case was very deliberately considered," Bell's Coms. i. 364, note 4. In the subsequent case of Fisher, 2d Dec. 1828, 7 S. 97, .suspension of a charge on a bond, with a clause providing for consignation, was passed on caution. It only remains to observe, that recourse to susixjnsion maybe held to shift the 07W8 prohinuli, mu] that the burden of proof may thus devolve on the challenger; Smith, 25th June 1829, 7 S. 702. This would also seem to hold where reduction is the process resorted to. Keduction was the form in wliich a decree ol exoiiei.it ion obtained l»y a cautioner was challenged in Scot, 7th April CAUTIONERS AND ATTESTORS. 327 1834, 7 W. S. 211 ; see also Grant, 24th Jan. 1835, 13 S. 966. Where a party after twenty-one, but within the quad- riennium utile, alleged lesion, he was allowed to open up the accounts of his tutor, although discharged by him with con- sent of his curators, Stuart, 1st Dec. 1638, M. 9008 ; Lady Ballegerno, Nov. 1683, M. 9011 ; and probably it was the possibility of such a challenge that induced the Court to re- fuse to deliver up to the cautioner his bond without a judi- cial audit, although the ward on attaining majority had dis- charged his curator bonis, in Steele, 14th Dec. 1852, 15 D. 229, and the other cases noticed in next chapter in connec- tion with applications for exoneration and discharge. The ascertainment of the balance as against him in any other way than in a judicial form, and after discussion, would seem on that ground, and with special reference to the provisions of the Act of Sederunt 1730, to be open to challenge by the cautioner ; Eadie, 19th Feb. 1833, 11 S. 415 ; Stewart v. Hickman, 1st Dec. 1843, 6 D. 151 ; but see Potter v. Bar- tholomew, 17th Nov. 1847, 10 D. 97, where doubts as to the soundness of the decision in the case of Stewart were ex- pressed by Lords Jeffrey and Ivory. How to proceed in a challenge on these grounds, if the procedure under the Pupils Protection Act were adopted, may be more doubtful, as section 34 provides, that if the factor or curator, at the termination of his office, present a petition for discharge, and he obtain discharge therein, it " shall hejincd and conclusive against all parties concerned, though pronounced in absence, provided the same shall not be opened up as a decree in ab- sence in the Court of Session within the time limited for appealing to the House of Lords, or shall not be appealed from within that time ;" but if the views already expressed be sound, the words used in the last-quoted clause would seem to point, though somewhat indistinctly it must be con- fessed, to and confer some other privileges on the parties, challenging a discharge thus obtained, beyond the common 328 CAUTIONERS AND ATTESTORS. law procedure for attacking final and conclusive judgments, viz., reduction and suspension. Can the section have meant that, previous to the late Court of Session Act (20 and 21 Vict., c. 5G), a reclaiming note, praying to be reponed as in the case of an Outer House decree in absence, would have been thereby rendered competent against an Inner House decree ? As explained in next chapter, the competent pro- cedure would tlien, as now, seem to be by a separate petition to the Court. The eflect of the appointment of the Accountant-Gcneral to perform the duties mentioned, and of the other enact- ments of the Pupils Protection Act upon the responsibilities of cautioners, is a question of some moment to tlie latter, seeing that the effect of the above-mentioned decisions, in Eaton and Cowan, and Kerr and Bremner, was to exclude almost every probability of their claiming liberation, although the carelessness of those most interested in the estate was undoubted. Analogous cases liave happened under the Bankrupt Acts, and as the commissioners are by statute vested with tlie supervision of the trustee, their [)assing and certifying false accounts as correct were held to liberate his cautioners ; Duncan v. Porterfield, 13th Dec. 182G, 5 S. 102 ; Houston's Executors, 13th Dec. 1826, 5 8. lOG. But where the trustee omitted to lodge accounts, as he was l)ound by the act, and nu audit took place, his cautioner was not re- lieved fr<»m his obligations ; Eadie, 3d Feb. 1S20, 7 S. 356. The commissioners' conduct was, however, held to free the trustee's cautioner, where they had sanctioned his retention of large balances, which they ought to have ordered to be banked, Mein v. Hardie, IfUb Jan. 1830, 8 S. 346; and although, in the next case, the House of Lords reversed the Court of Session's decision, the principle of this case of I^Iein was expressly stated not to be disputed, it being, that whorf any one beromos srrurity for the conduct of another in an ofli<«\ in wlnfli br mupt br- brouLdil in ofTicinl CAUTIONERS AND ATTESTORS. 329 contact with certain other persons, lie has a right to ex- pect that these persons will in all things, and particularly those affecting the surety, conduct themselves according to law, and discharge their duties. The case just alluded to, as that in wdiich a reversal by the House of Peers took place, was M'Taggart v. Wilson, 6th April 1835, 1 S. and M'L. 553 (25th Jan. 1834, 12 S. 332) ; but, as may be supposed from the approval of the case of Mein, this reversal does not affect the principle of it and the previous cases, that while mere negligence or laches on the part of the commissioners will not free the cautioner for the fulfilment of his duties by the trustee, yet that an illegal act, such as their entering into an agreement, either express or implied, which alters the character of the office and prejudices the cautioner, will, in equity and law, ex- tinguish all claim against the latter. Lord Brougham stated, that in M'Taggart the facts of the case had been totally disregarded by the Court below, and that there was no relevant averment of laches on the part of the commis- sioners. Cautioners, it was there laid down by his Lordship, were not to assume that they were completely freed, by the Bankrupt Statute having provided for the supervision of com- missioners, from any obligation to see the statutory duties of the principal rightly performed. On the contrary, the cautioner's obligation was that the principal would con- form to and comply with the statutory enactments. The policy of the Bankrupt Act was to give to the creditors double security against malversation by the trustee, the superin- tendence of the commissioners, and the obligations on the cautioner. Otherwise, why was a bond of caution taken ? The commissioners' superintendence, if all that the creditors could demand, was a matter of statutory enactment, and no bond was necessary to ensure it. The bond was intended to secure some additional and separate benefit, and that was a guarantee, that, so far as the cautioner was concerned, he 330 CAUTIONERS AND ATTESTOUS. would see to it, that tlio trustee fulfilled the duties im- posed on him by the act. The superintoudence of the com- missioners is not mentioned in such cautionary bonds, and is not thereiore matter of stipulation by the cautioner. He might have made any stipulations ject them- selves in an unlimited liability, to fix the amount of the ob- ligation to be undertaken. As yet tins clause (section 27) lias remained inoperative, although attempts have been made to take benefit by it ; but the great obstacle has been the impossibility of assigning limits to the cautionary obli- gation. The period at which, in the first two cases, the Court was asked to interfere, — at the commencement of oflice, — is about the most inopportune, as the fact of little or no knowledge being possessed as to the estate is very often the most potent reason for applying for a factor. Would it not bo more reasonable to ask the Court to assign limits after the result of their officer's inquiry as to the extent and value of the estate is known, he meanwhile finding caution in the ordinary way ? In these first two cases of Bentley, 24th Nov. 1849 (First Division, not reported), and Wilson, 30th Nov. 1849 (Second Division), 12 D. 248, while the Court would not appoint factors, except on the condition of finding caution in the usual way, they requested the clerks of Court to make in- quiries on the subject, and to report. A report was accord- ingly prepared by two of the principal clerks of Session ; and in it they stated that the 27th section was inserted on the suggestion of the writers to the Signet, who had repre- sented to the Legislatiiii tli;it Ihc time seemed "to have arrived when, with manifest advantage to the lieges, a rliange in the existing practice in regard to caution for jiulicial factors may bo permitted," because the bonds of guarantee associations were accepted in preference to the bonds of j»rivatc sureties by Government in all its de])art- rnents, and for receivers by the Court of Chancery, and by the county courts of England, while the chartered and joint stock banks, railway and otlur jiublic companies, besides numerous private companies and individuals, daily availed theniselves of the security afforded by such associations. CAUTIONERS AND ATTESTORS. 333 The reporters, witli the view of assisting the Court, ad- justed the form of a bond, and the conditions to which the British Guarantee Association had intimated their readi- ness to agree, beyond those which entered into their ordi- nary transactions, and while the Court's attention was di- rected to the fact, that increased efficiency iu their officers would be secured by the additional supervision to which they would in this way be subjected, the reporters could not dis- guise the difficulties which surrounded the matter, as re- garded the ascertainment of the sum to which caution was to be limited, especially if that had to be done previous to the officer's appointment, and the liability to periodical termination, inherent in a cautionary obligation, dependent for its annual renewal on the payment of premiums. Nothing occurred with reference to the bonds of guarantee associations and the report thereon, until the consideration of the subject was again forced upon the Court in the course of the last session by the presentation of a petition by the curator bonis to an incapable who had been appointed in 1857, and having found caution in the ordinary way entered upon the duties of his office ; but who, on the death of his cautioner, was called upon by the Accountant of Court of new to find caution in tlie curatory. In that case, which presented, on the grounds we have already indicated, favourable circum- stances for the Court's interference, it was stated that the income of the estate under judicial management amounted to about L.2000 a-year, but it was expected that, in conse- quence of a succession which would accrue to the incapable on the death of a brother, his income might be increased to about L.3000 ; and the curator proposed that this last-men- tioned sum should be the limit of the caution to be found by him. There was in this way, doubtless, no provision made for the security of the capital of the estate ; but the curator submitted that that sum was an amount which, under ordinary circumstances and under the regulations in strict 334 CAUTIONERS AND ATTESTOllS. force under the Pupils Protection Act, would much exceed any sum belonging to his ward wliidi was likely atone time to he in his hands or sulijcct to his control. Upon a re}>ort hy the Accountant of Court on the matter which was favour- able to the application, a remit was made to a man of busi- ness in whom the curator, Accountant, and also the British Guarantee Association, had confidence, but the Court have not yet disposed of the petition ; Burnett (Glack Curatory), Jan. 1859. We have already seen that the mere reference to an Act of Parliament has not the effect of a special stijndation in a bond ; and in the case of ordinary cautioners, the Court per- mit no special stipulations to enter the bond. But if, as the British Guarantee Association have intimated their purpose of doing, special stipulations are made, and special represen- tations by the Accountant of Court, or any other party as re- porter are held to be competently given, the cautioners will be entitled to stand upon these and assert their rights in re- gard to them, even at the expense of those interested in the estate. The representation by a bank, as to the manner in which their teller's cash was checked, was held in a question with the Guarantee Association, who had become security for him, to amount to an undertaking, as it was material to the interests of those to whom the representation was made, and the undertaking so entered into was held not to be ex- cluded by the fact of its not having been referred to in the bond of guarantee ; British Guarantee Association i\ Western Bank of Scotland, 8th July 1853, 15 1). 834. In cases where caution is limited, there are some other lirinc.iples involved than those already noticed. If the balance due on the (»fTleor's intronn'ssions shall exceed the limits of the cautionary obligation, it is held to be a security for that balance, after deducting therefrom whatever may be derived as dividend from the principal , or from any other source; and the creditor is entitled to apply such sums in CAUTIONERS AND ATTESTORS. 335 paj^ment pro tanto of the debt, leaving his recourse against the cautioners to the last ; Bell's Com, i. (5th edit.) 366. Thus, a hank-agent having become bankrupt, and being in- debted to tlie bank in L. 15,000, the cautioners for his intro- missions to the extent of L.5000 could not demand that the dividends drawn by the bank from their principal's estate, even corresponding to L.5000, should be imputed in extinc- tion of their obligation, or that the bank should grant an assignation of their claim to that extent, in order to their drawing the dividends ; Balfour and Gibson v. Borthwick, 27th March 1822, 1 Shaw's Appeals 131 (in Court of Session 29th Jan. 1819, F. C). In other cases there is no such thing as limited liability. The only approach to it attainable is by the interim judicial audit of accounts, a course very frequently adopted where the intromissions of the factor or curator are to any great extent; A. B., 29th June 1854, 16 D. 1004; Morison, 5th Dec. 1856, 19 D. 132. In this case, for on both occasions the same factory was concerned, the Court at first refused to approve of the accounts, and dismissed the petition. The accounts when corrected were again presented for interim audit, in order that the balance as against the factor might be ascertained, and the Lord Ordinary, to whom they were remitted for examination, reported the point, whether the factor was entitled to take credit for the expense of the former unsuccessful application, and if so, whether it should he stated against the fee or the income of the estate ? The expense consisted of business-charges relating to the appli- cation, and of the fee paid to the Accountant who had audited the accounts so far and prepared a report, this audit and report being available in tlie second application. The Court would not sanction the business-charges being stated against the fee of the estate, although they allowed the Accountant's fee to be so cliarged, reserving t]ie question, whether repayment of the business charges was not claim- 336 CAUTIONERS AND ATTESTOltS. able as against tho lifereiiters, at whose request tlie invest- ments which resulted in the refusal of tlie iirst petition were made. The annual audit by the Aecountant-Geueral, in those cases to which tlie I'ujdls Protection Act applies, has to a certain extent tlie eilect of an interim audit. We have already examined the expressions used in the act as to the finality of sucli audits ; and their nature, as being ex parte, irrespective of the ambiguous phraseology of the act, is not such as to confer upon them the privileges of a judicial de- cree, which can only be challenged in a reduction or suspen- sion. On the contrary, another procedure, not in exclusion, but it would seem in addition to the common law remedies, is provided for the benefit of certain objectors. A cautioner for an officer, within the scope of the I'upils Protection Act, could call uj)on the Accountant of Court to put in force the powers conferred upon him as regards demanding information as to the estate from bankers, or to intimate, on his refusal to do this, that he would apply to the Court, either with the view of intimating the necessity of having a new cautioner, or of having the factor, and failing him the Accountant or the bank, ordained to aff'ord the par- ticulars regarding the management of the estate which he desired. In our third chapter we considered the clauses in tlie act wbicli relate to banks ; ami in our soroiid chapter we saw that cautioners had a right and title to present com- plaints to the Court, and even to api)ly for the removal of their principal, and if need be the appointment of a suc- cessor t<» him. The very full consideration, which in our last chapter was given to the terms in which burgh-managers have been ap- pointed, necessitates very short notice of the subject here. Those of tlieir number, who were not to intromit with funds, were not generally required to find caution, but in one case they were all apj)ointed to do so ; Kay, 1 Ith March 1830, 8 CAUTIONERS AND ATTESTORS. H87 S. 719. Those officers, who had to find caution, had gene- rally to do so to the satisfaction of the managers, and not, as other judicial cautioners, to the satisfaction of the Clerk of Court. The only other peculiarity we need notice is, that in some cases caution was found onl^^ for a limited time, depending on the endurance of the appointment, which in many instances was during joint lives or for a certain num- ber of years. There are no peculiarities as regards statutory factors and their cautioners which bear in favour of the latter. Their functions being entirely dependent upon Acts of Parliament, the cautioners for the performance of the duties thus con- ferred would seem, on the principles of cases already noticed, to be under an obligation that the factor did not transgress the limits of his powers, in addition to those other obligations which the ordinary cautionary bond involves. A judicial factor, under the 164th section of the Bankrupt Act, 19 and 20 Vict., c. 79, is, by Act of Sederunt dated 25th Nov. 1857, ordained, before extracting his appoint- ment and entering upon the administration of the estate, to " find caution to the satisfaction of the Clerk of Court for his intromissions and the due performance of the duties of his office." That Act of Sederunt gives the details of these duties, and as its provisions are not materially different from those of the Pupils Protection Act in essential points, a reference to the observations already made (m that statute is all that is necessary here. (See Appendix.) We have now in conclusion to notice the position of attestors of judicial cautioners. As required in practice, the attestors are a Justice of the Peace and the agent in the Court of Session. They both certify that the cautioner in the bond is habit and repute responsible for the obligations therein contained. An attestor, who can substantiate that the cautioner was Y 338 PAUTIONEHS AND ATTESTORS. liolden and ivputc sufficient at tin- tinu- Inr tlu' uMigations he undertook, will ho assoilzied; Paterson, ITtli Dec. 1667, U. 2160; Dempster, IGtli Dec. 1698, M. 2160; Ramsay, lOth July 1710, M. 2162. But where a party had attested a cautioner who was a minor, and had on that head reduced the bond, and he contended that his attestation imported no more than that the cautioner had an estate worth the sum charged for, the Court, having put it to his oath, and dis- covering thereby that he was in pcssimo cJoIo, found him liable; Earl of Kinghorn, 6th Feb. 1(;72, M. 2075. The amenability of an attestor to an action was again recognised in Somervell, 2d Jan. 1683, :M. 2143. An attestor's heir was the defender in Kennedy, 4th Feb. 1704, M. 2147, and he unsuccessfully attempted to maintain that tlie attes- tation subjoined to the bond was null, as wanting the name of the writer and witnesses, as well as that the obligation undertaken was only that the cautioner was then solvent. "Where, however, the attestation was separate from the bond, and in a letter neither hologra]ih or tested, a defence on these grounds was sustained : "M'Kinlay, 14th Feb. 1781, M. 2154. Although in the general case any obligation against an attestor can only be constituted in an action, yet where an attestation contained a consent that " these presents be regis- trate with the within bond, that all execution pass thereon suhaidiarie accordingly," it was held competent to charge the attestor sunimarily thereupon ; Gillespie, 2';tli June 1747, M. 2163. The Court, in an Act of Sederunt dal( d 27th Dec. 1700, were at pains to enact, that as tlicir Lordships liad observed "that the attestors of eautiontrs are only taken obliged for their responsality and sufhcnency at the time of their attes- tation, which puts the leidges to a long and tedious proba- tion of the cautioner's condition at the time, and finding it an unreasonable practice, therefore they ordain the clerks CAUTIONERS AND ATTESTORS. 339 of the bills to take the attestors bound as cautioners for the cautioner, and lyable suhsidiarie in their order, as fully as the cautioners themselves." But this part of the Act of Sederunt has long been in desuetude, although otherwise it is in force ; Wilson, 20th Jan. 1836, 14 S. 262 ; Alexander's Abridgement of the Acts of Sederunt, p. 40. y2 340 CHAPTER V. PROCEDURE. Of tlio Court of Session, and its jurisdiction in applications relating to factorial appointments and management, we treated in our first chapter, and the suhject was again no- ticed in our third chapter. The applications which relate to management are those, in which special powers are asked for the factor, or where recall of the appointment is sought with a view to the nomination of a successor. The judicial management is in like manner terminated by an application for exoneration and discharge of the factor, coupled with recall of the management, if that he necessary, as is fully treated of in our second chapter. Sometimes incidental matters arise, which can only be disposed of by the Court, in regard to the officer's cautioners, objections to audit of accounts under the Pupils Protection Act, and reports as to the conduct of the factorial business l)y the Accountant- rieneral and Accountant in Bankruptcy. An application undrr the Art 16 Vict., c. 20, for a warrant for a new elec- tion of magistrates of burghs is al.'io, as is explained in our first chapter, to be presented to the Court of Session. A summary petition is now the form, in which all rom- nion law proceedings as to factories are commenced ; and uidoss othersvise directed, the same form is that which sta- tutory applications also assume. AVInlr surh petitions were PllOCEDUUE. 341 presuuteJ to the Iinit-r House, they wei'e directed, " Unto tlie Riglit Honourable the Lords of Council and Session ;" and this style is still retained, notwithstanding the presen- tation and enrolment of the greater part of such petitions before the Junior Lord Ordinary, or the Lord Ordinary on the Bills ; for the Act 20 and 21 Vict., c. 56, declares (§ 5), that the judgments and deliverances of their Lordships are to have equal effect with those of the Inner House previous to the act. Petitions, &c., must have marked on them the Division to w^hich they are to belong. Every paper which requires to be boxed must be printed, and petitions formed no exception to this rule while their presentation was confined to the Divisions. In every case, although now presented in the Outer House, the peti- tion must be printed and boxed as formerly (see Order of Court, dated 21st Nov. 1857). By Act of Sederunt, 11th Dec. 1849, a copy of petitions for the appointment of factors loco tutoris and absentis, and curators bonis, must be boxed for the Accountant-General ; and by Act of Sede- runt, 25th Nov. 1857, every petition under § 164 of the Act 19 and 20 Vict., c. 79 — the Bankrupt Act — must be boxed for the Accountant in Bankruptcy. An exception to the rule as to printing was, in respect of special circum- stances, permitted in Philip, 24th Dec. 1831, 10 S. 192. The precedent condition of boxing is not applicable to petitions presented to the Lord Ordinary on the Bills, for the boxes of the Judges, &c., are not open during vacation except on box-days, and hence the printing of such appli- cations may in the first instance be dispensed with. Such was the course adopted when formerly petitions had to be presented to the Bill Chamber Judge, and afterwards put to the Inner House Kolls for the confirmation of the Inner House appointments, as is fully explained in Chapter I. But in these cases it was not uncommon, in the prospect of its being ultimately necessary, to print a petition addressed 342 ruocEDURE. to the Lonls of Council and Session, and not to the Lord Ordinary ou the Bills at the very first. Where the petition presented in vacation was to the Lord Ordinary on the Bills, a new petition was necessary when cojifirniation was sought from the Court, Whyte, liith Nov. 1844, 17 Jurist, 53; or at least a supplementary one, Scott, 22d May 1845, 7 D, 638 ; Raehurn, 25th Nov. 1851, 14 D. 310. As all other papers put into the boxes were Inner Ilouse proceedings, it wa.s found necessary to distinguish the sum- mary applications to be moved in before the Lord Ordinary, and accordingly the Court ordered the words " Junior Lord Ordinary " to be printed conspicuously on these petitions, which were not intended to find a place in the Inner Ilouse Rolls ; see Order of 21st November 1857. The office-clerks of the Junior Lord Ordinary for the time arc the custodiers of the processes of which the petition is the first step ; and that, not only during session, but also in vacation, although the Lord Oidinary on the Bills be then the Judge. The same rule obtained in reference to petitions presented during vacation before the passing of the Act 20 and 21 Vict., c. 5G ; and the Inner Ilouse clerks acted as the clerks to such processes in vacation. The regulations as to inventories, y an nnKr <•!' Cmirt ilatod llUhJuly 1S44, not allowed to be made in the tliree last sederunt days of each session. Some applications are not at all times competent. The Acts of Sederunt of 17th July 17(54, and C){\i June 17^0, were enacted willi the view of restraining the privilege of apply- ing to the Court within a few days of the end of the winter and summer sessions, and a petition presented in violation of their provisions was dc j^^dfto refused in Ivobinson, 25th Feb. 1825, 3 S. 401. These acts, however, were repealed by that passed on 13th July 1844, and it was thereby enacted that " all petitions for sequestrating estates under sale or for money shall be boxed for the Court on or before the 25th day of February for the winter session, and 5th day of July for the summer session." That act did not, however, re- peal the Act of Sederunt of 21st Dec. 17G5, which does not jjcrmit such petitions to be received on any of the five days which precede the Christmas recess. It is not to be pre- suine collect tolls PROCEDURE. 347 and defray arrears is sought, that the thirty days' notice required by section 52 has been duly given and lias expired, Baird v. Caledonian Kailway, 13th Nov. 1850, 13 D. 36 ; Primrose (Wishaw and Coltness Co.) v. Caledonian Railway Co., 14th Jan. 1851, 13 D. 464 ; and where the mortgagee craves an appointment for the purpose of obtaining repay- ment of the principal sum as well as interest, there ought to be a statement that six months' previous demand for pay- ment has been made. The extent of the petitioner's inter- ests in the deceased's succession, the fact of its being intes- tate, or otherwise unprotected, and that the children (if any) have no legal guardians and cannot act, are all matters to be stated in petitions for factors under section 164 of the Bankrupt Act ; Macfarlane, 6th March 1857, 19 D. 656. The concluding portion of the statement is the place, in which tlie petitioner suggests the name of a party whom he thinks fit for the appointment. The qualifications, which a party must possess to be appointed, and which should there- fore guide a petitioner in his nomination, are fully detailed in Chapter II. The full name and designation of the party suggested should be given, to enable the Court to exercise their judgment as to his professional fitness, &c. ; Anderson, 22d Nov. 1854, 17 D. 97. If the nominees have had any connection with the ward or estate previously, the fact should also be stated, and details of the connection given, in order that the Court may judge as to its exercising any disqualifying influence, or the reverse ; Mathew, 5th Dec. 1851, 14 D. 312. There may be more than one party nominated for the oflfice in a petition, although, as we have seen in previous chapters, one will only be appointed by the Court, and the suggestion may be that one party, whom failing another, should be appointed ; but in this latter case the Court, if they act on the suggestion at all, will appoint only one of the nominees at a time ; Dow, 8th Feb. 1847, 9 D. 616. If M>^ I'HOCEDUUK. tlie lirst party have been nuiuiimteil ami fail, the socuiitl will uot be ajipoiuted without intimation ol new ; Thomson, (Itli Dec. 1851, 14 D. 311. It i.s hence of im]»ortance to ascer- tain, if the party to be nominated will accept of the ollice, before inserting his name in the petition ; IScouUer, 28th Nov. 1834, 13 S. 101. Where a factor is sought by creditors in a ranking and sale, or by the creditors or burgesses of a disfranchised burgh, they may, instead of suggesting a party, state their opinion to be in favour of an order by the Court on the creditors or burgesses to meet and choose a party to be recommended to the Court, and the grounds on which they have formed it (see Chapter II). The procedure, under an order to meet and choose a party or parties to be suggested for appointment by the Court, will be similar to that at the election of a common agent in a process of locality. There is only one class of petitions in which the sugges- tion of any party to be the officer of Court is not allowed, and that is in petitions under the lG4th section of the Bank- rupt Act, and the grounds of this exception are explained in Chapter II. It will be observed that the form of petition, given in the Act of Sederunt of 2oth Nov. 1857, contains no provision for in.serting a nominee. (See Appendix.) After the statement in the petition, there follows the prayer, which must embrace, alternately il'iiccd be, all that the petitioner is to require of the Court. On the same principle that the Court cannot go beyond the conclusions of a sum- mons, they will not go beyond the prayer of a petition. It is for the purpose of letting other parties know what is to be asked of the Court that a prayer is necessary at all, and tiiey are entitled to rely on the Court not doing aught but what the petitioner has intimated he is to ask them to do. The first part of the prayer, accordingly, is for intimation to the lieges, on the walls of the Court of Session and in the Minute Book of Court, and this is .sought in common form ; PROCEDURE. 840 and for service on all the parties, wlio have been set forth in the statement as having any interest under the petition, or in the estate, and that by name, Thomson, 2r)th Nov. 1847, 10 D. 148 ; even tlioiigh furth of Scotland, Dalrymple, 25th June 1836, 14 S. 1011 ; and more particularly the party to be put under judicial guardianship, especially if he is alleged to be incapable, Gordon, 22d Dec. 1832, 11 S. 235 ; Pater- son, 17th July 1847, 19 Jurist, 690 ; Lang, 25th Nov. 1847, 10 D. 148; M'Gregor, 23d Dec. 1848, 11 D. 285; see also Govan, 20th Dec. 1814, F. C. Thus, where a party was alleged to be of unsound mind and was omitted from the enumeration of those on whom service was craved, the Court ex propria motu appointed it to be served on that party, or cause shown why that should not be done ; Buckie, 11th March 1847, 9 D. 988. As the Lord President remarked in the al)ove case of M'Gregor, — " No man shall be declared a lunatic by this Court, without having an opportunity of knowing personally that an application to that effect has been presented against him. That rule must be adhered to in all circumstances, and no new form of process for every special case can be permitted. It is the more necessary here, seeing that the doctor who refuses admission to the messenger is the same doctor upon whose certificate the ap- pointment is wanted." This last remark refers to the fact, that, although service was ordered, the doctor would not permit it to be made on account of the state of the malady of the alleged lunatic. On that point Lord Jeffrey remarked , " Tlie intimating of this petition to the lunatic can do him no harm, and I will not believe it to be otherwise on the authority of all tlie doctors in Europe." And where the petitioner alleged the declinature of trustees on the estate he sought to put under judicial management, he was ordered to make special intimation to all of them ; Kussell, 27th June 1855, 17 D. 1005 ; Hutchison, 27th Feb. 1847, 19 Jurist, 347. As explained in our second chapter, the validity of 350 PROCEDURE. any appointment depends upon service being made on all interested. No intimation is necessary wliere a conclusion for a fac- tor's appointment is contained in a summons, as of course there is the usual formal service ; and it would seem that in those other appointments, which the Court make without having a petition before them, there is no intimation or service, as none is necessary ; Jaflray, 20th Dec. 1851, 14 D. 292. In petitions for factors under § 1G4 of the Bank- rupt Act, intimation on tlic walls and Minute Book is asked, along with an order to intimate in the " Edinhur^li Gazette," but no specific prayer for service on individuals is introduced, there being substituted a prayer for service, " in such utlier form and way, and to such persons as to your Lordships may seem fit." This results from such ser- vice being what the act authorizes to be sought. Wher- ever there is, as regards statutory appointments, provisions on the subject of intimation and service of the application, the prayer must l>e confined thereto. Thus, in an api>lica- tion for a factor under § 14 of the late Bankrupt Act, 2 and 3 Yict., c. 41, intimation was not considered to be necessary; Gillespie, 21st Nov. 1840, 3 D. 133. V>\\t if nothing be enacted in reference to it, the jiriiiciples, on which intimation and service are prayed for, and made in common law applications, will apply to and regulate pro- ceedings therein ; Lumsden (Western Bank Tiiipiidators), 14th Dec. 1858,21 D. 110. The next part of the prayer craves an order for answers upon the particular respondents, if they are advised to ob- ject to tlic petition. Care should be taken to make the firaycr comprehend iill tlie re.Mpon dents, as otherwise certi- fieation in default of their lodging answers will not run against tho.se who were not ordered to lodge them. A time within which the answers should be lodged should j^erhaps be specified in the prayer, although an order to answer is PROCEDURE. 351 often souglit in common form. There are no established inducice in regard to such petitions ; and in practice eight days is the time within which answers are either specially ordered, or are due, if no particular time is specified. That there is some ambiguity on the subject is shown by tlie late Act of Sederunt of 25tli Nov. 1857. proposing, in the form of petition annexed to it, to ask intimation " in com- mon form ;" and in section 4, enacting that the Court shall not make the appointment of a judicial factor until the lapse oi fourteen days, or such other time as the Court may fix, after both the publication of the " Gazette" notice and the date of service (when such service is required) of the petition on the representatives of the deceased debtor. The Act of Sederunt of 11th July 1828, which professedly is the regula regul.ans in such matters, also enacts, that at the first moving of the petition, " the Court shall pronounce an interlocutor, ordering service thereof, and answers to be put in, in writing, within fifteen days after service." Still it is undoubted, that in practice eight days is the usual time asked, if any special time be asked ; and the usual time granted for lodging answers of intimation and service in common form is craved. In the case of Ogilvy, 28th May 1858, which occurred before Lord Kinloch, a petition for the appointment of a curator honis prayed for intimation and service in common form, upon certain parties nomina- tim, some of these being abroad. An interlocutor was pro- nounced, ordaining intimation and service on the parties named in the petition, and them to lodge answers thereto, if so advised, witliin eight days from the date of service. On the lapse of eight days from the date of service, his Lordship was moved to proceed with the cause ; but having intimated his doubts as to eight daj^s being the proper in- ducice, more particularly where edictal service required to be resorted to, the case was continued, to allow of inquiries being made. Ultimately his Lordship intimated that he 3r)2 PROCEDURE. was satisfied that it was tlu' })ractice to ask and alknv only eiglit days as tlie iiuhcice for service of such jiotitions, whetlier edictal or otherwise ; and althnnj;h lie thouj;ht tl»o practice somewhat anomalous, lie was not disposed to dis- turb it. But in the previous case of Carmicliacl, 14tl) dune 1848, 10 V. I'JSn, the Court suggested that a proper course in such circumstances, on the analogy of petitions by tutors and curators in reference to their inventories, was to pray the Court to dispense with service on parties furth of Scot- land, in respect of their being so. Attempts have been made to get tlie Court to dispense with intimation altogether, but very properly without success, Ilutcliison, 27th Feb. 1847, 19 Jurist, 347 ; Taylor, 18th July 1857, 19 D. 1097 ; although, before the practice of the Court acquired its pre- sent consistencj', such a course seems to have l>een in rare instances followed, Frazer, 18th Dec. 1828, 7 S. 205 ; Liv- ingstone, 3d July 1835, 13 S. 1033. It does not seem even to be absolutely necessary to take an order on the parties to lodge answers, for a petition having been allowed to be seen for eight days, and no answers having been given in VN-ithin that time, the respondent was refused further time to lodge answers, the Court holding that the party against whom such an order was directed ought to have lodged answers, if he any had, witliin the time specified ; Manson andGoldie, lltli July 1832, 10 S. 811. Sometimes, as at the end of a session, an order for answers is asked by a day certain, e. (/., the first box-day, and in such a case, as the Court ijitend the respondent to have all the time between the ])re.«?entation of the petition and that date to consider the course he will ftJlow, the service will be inept if it be not given immediately on obtaining the order ; Duke of Northumberland, 23d Feb. 1832, 10 S. 306. After intimation and service has been jirayed for, the Court are craved, on resuming the case, with or without answers, to serjuestrate the estate mentioned in the petition PROCEDURE. 353 in cases where this is necessary, as explained in the com- mencement of Chapter I., and to appoint the party suggest- ed, or "any other party your Lordships may think proper," to be the factor or other officer. Without the addition of this alternative prayer, it is considered doubtful whether the Court would feel themselves at liberty under the petition to appoint, especially in absence, any other party than the peti- tioner's nominee. Hay, 11th March 1837, 15 S. 850 ; al- though, in a previous case where contradictors appeared, the Court did hold themselves entitled to do so under the con- cluding part of the prayer, — " or to do otherwise as to your Lordships may seem proper," Davidson, 26th Jan. 1837, 15 S. 421. Where the petition prayed for the appointment of one party, whom failing another, and the Court appointed the former, but he declined, the -other nominee could not be ap- pointed without new intimation and service ; Thomson, 6th Dec. 1851, 14 D. 311. The Court will not appoint one part}' , whom failing another, to be their officer ; Dow, 8th Feb. 1847, 9 D. 616. The Court have adopted it as a general rule, that if none of the nominees in a petition will accept, they require new intimation and service before ap- pointing a different party ; Scouller, 28th Nov. 1834, 13 S. 101. We shall afterwards see in what circumstances they hold themselves entitled to nominate a different party with- out new intimation and service. If an appointment pending the currency of the inducice is to be sought, a special prayer for such an appointment should be inserted, Davidson, 8th July 1830, 8 S. 1027 ; Henderson, 8th July 1830, 8 S. 1027 ; and as a diversity of practice occurred in the two Divisions of the Court, it was expedient to make this part of the prayer alternative, being for a factor ad interim, or for a remit to a Lord Ordinary, or the Lord Ordinary on the Bills, to appoint such a factor, Taylor, 18th July 1857, 19 D. 1097. In one case the Second z 354 i-H(MKi»ruK. Division appointuJ a iactor ad hifci im without any special prayer ; Goold, 19th July 1856, 18 D. 1318. In consequence of the Lord Ordinary being now the Judge generally resorted to in such petitions, and his powers of delegation being at best doubtful, there is no necessity for an alternative prayer, although it is proper to ask specially for an interim appoint- ment where that is likely to be found necessary. Any special powers, which can competently be sought at appointment, will next find their api)ropriate place in the prayer. In the case of ordinary common law oilicers, none such will then be granted, Kerr, 7th Dec. 1840, 12 D. 206, and otlier cases in Chapter 111. ; unless where a former officer had obtained them, and died before exercising them, Raebiirn, 18th :March 1851, 13 D. 951. But where the officer sought is a burgh-manager, it is quite usual to ask the Court at ai)puintment to grant special powers ; and what these require to be was the subject of remark in our third chajiter. AVhere, on the other hand, a statutory faetur i.s sought, the "usual jKjwers" shouM not be craved ; but the jieti- tion should i)ray for his a]q)ointment for the iiurjtoses of, and with all the powers conferred by, the statute. This would be the safe course, and if the Court thought some of the statutory powers were only to be conl'errcd afterwards on cause shown, their interlocutor, by granting a part of the prayer, would give effect to such views. It is much safer to have too broad a prayer than too limited a one, just as a conclusion in a summons can always be limited, but not extended, without a su])])lemcntary ac- tion. The restriction of a prayer can be made by separate minute or deletion, or the jxtitioner may only move the Court, when they take uj) his aj)plication, to grant so much of the prayer. Of the intiiitiou to make such amondments, the Court do not generally require intima- tion, although they sometimes do so, Kollo, 8th July 1852, PROCEDURE. 355 14 D. 990 ; but serious amendments do require new intima- tion, Lockhart, 9th Feb. 1837, 15 S. 498 ; if not done be- fore the Court proceed to order intimation and service, Bonthron, 19th Dec. 1828, 7 S. 215 ; Morris, 27th Feb. 1858, 20 D. 716 ; except of consent, Watson, 21st Nov. 1856, 19 D. 70. An illustration of the advantages of a broad prayer, and the power of restricting it, is readily afforded in those cases where the Court may disapprove of the combination of either officers or petitioners in the petition. Thus, in Bon- thron, 19th Dec. 1828, 7 S. 215, several purchasers in a ranking and sale combined, and gave in a joint petition for their exoneration and for delivery of their bonds. The Court bad no objection to the number of petitioners, but they in- dicated an opinion adverse to a prayer for the discharge of more than one purchaser at a time, and offered to allow it to be restricted, of which offer the petitioners thereupon availed themselves, and intimation of the petition, as so re- stricted, was accordingly ordered. In a case of Phillip, 23d Nov. 1858 (not reported). Lord Kinloch had presented to him a petition praying for the appointment of the same party as judicial factor on a lapsed trust, and also as curator bonis to one of the beneficiaries thereon, who was alleged to be incapable. Not only was the application for the appoint- ment of one individual to offices which must involve con- trariety of interest to a greater or less degree objectionable, but as there was a combination in one petition, of what ought to be two separate applications, his Lordship sug- gested the restriction of the prayer to one or other of the appointments sought. This course was followed, and after the necessary amendments by deletion were made, intima- tion and service were ordered. There is further good ground for the Court's discouragement of combined applica- tions for different officers in one petition, in the expedi- ency of keeping the proceedings relative to different estates z 2 356 rROCEDURE. separate ami ilistinct, tlie petition for appointintnt being the initiative step as regards each estate. But tlie appoint- ment of tlie same party to be judicial factor on a trust- estate, and factor loco tutoris to a pupil legatee under the trust-deed, was made on one petition in Kirkwood, 13th Feb. 1855, 17 D. lU:. The only well recognised exception to the exclusion of combined petitions occurs in the case of applications for a factor loco Uiioris and a curator horns to pupil and minor children of the same family — as we saw in Chapter I. Very little in point of principle can perhaps be said in sup- port of the distinction. At the same time, their interests are so much identified, and it is so great an object to a family left thus unprotected to save expense, that one does not wonder at a Court of Equity making an exception in the instance alluded to. Such being the principles wlii( li regulate the preparation of the petition, the printing, boxing, and lodging it are the next steps. Along with the petition there must be pro- duced such documents as are necessary to instruct the aver- ments embodied in the petition. AVhat productions should be made is always a matter of grave consideration for the petitioner's advisers, and great delay, expense, and annoy- ance is caused by inattention to this matter. It should be remembered that no Judge can take for granted ex parte statements, and at the first stage he is entitled to be satis- fied that the petitioner has at least a pi'imn facie case. It is quite true, undoubtedly, that afterwards there will be an opportunity of producing documents to remove any doubts that may exist in the Lord Ordinary's mind ; but it ought further to be remembered, that all the parties to whom in- timation is made are entitled, just as much as defenders in an action, to see the productions intended to be founded on and used in the cause. The best means therefore of obvi- ating all delay, difheulty, and unneeessnry exiten.se, is for PROCEDURE. 367 the petitioner to make all his productions before he asks the Court to move in the matter. Accordingly, in those appli- cations, which more than others impressed the Court and practitioners with the disadvantages attendant on summary and ex imrte proceedings — petitions for curators honis iom- capables, — the course we suggest as worthy of adoption in all cases was very soon enforced. Certificates of the party's incapacity, not in vague general terms that he is infirm in body and mind, but specifying the grounds on which the opinion that the party is unfit for the management of his own affairs is rested (Laidlaw, 31st Jan. 1846, 8 D. 426), must be obtained from two medical men, and not only pro- duced, but printed and boxed with the petition for a curator, before the Court will move in the matter, Kobertson, 2d Dec. 1853, 16 D. 317 ; except to refuse the application, Kenmore, 7th July 1849, 11 D. 1494 ; or to allow it to be withdrawn, Wright, 16th Nov. 1849, 12 D. 912. In no other case is the petitioner required to print and box his productions at tlie commencement of the proceedings ; but the Court may, at a subsequent stage, allow or order him to do so. The day after it is boxed and lodged, the petition will appear in a spe(;ial roll of " Petitions — First Enrolment," if it have been marked for the Junior Lord Ordinary, and if not, it will appear in the Single Bills of the Division marked on it. At the moving, if no objection to the competency be mooted either by the Court or any other party interested, the latter especially being an unlikely event, intimation and service will be ordered as craved, and also upon such other parties as the Court ex propria motu may appoint. An ob- jection to courpetency can be quite competently disposed of at this stage, but the Court will, it is thought, scarcely ever do so, as the presence of contradictors is not as yet judici- ally secured. If an objection have been suggested, the in- terlocutor may, with the view of calling parties' attention, 358 PHOCEDURE, contain a reservation of all objections to the competency, as was (lone in Macfarlane, Gth March IS")?, ID D. G5G. After the petition has been written upon, ami intimation and service ordered, there is then a depending cause in Court ; Horn, 14th Nov. 18")?, 20 D. 52. Tiio intimation and service ordered always include inti- mation on the walls and in the i^finute Book. Intimation on the walls is a duty which devolves on the petitioner's agent, and is made by aflixing a copy of the petition and interlocutor to a board in the lobby of the Parliament House. The intimation in the ]\[inute Book is attended to by the clerk to the process, who enters therein the interlocutor ordering service. The evidence of intimation having been so made is a certificate, which the agent or his clerk must write upon the interlocutor sheet, and is generally in these terms :— " Edinburgh, 18—, I (A. B., clerk to) C. D., W.S., hereby certify that this petition and the foregoing interlocutor have been duly intimated on the walls and in the ^Minute Book, in terms of the said interlocutor. (Signed) A. B., or C. D." Care should be taken to have this certifi- cate aj>pended before any farther stej) is to be taken, as otherwise the Court cannot bo expected to hold that the in- timation directed to be made has been given. The service of the petition and interlocutor ordering it is the next matter to be attended to, and it is, as in other Court of Session ca.ses, made by a messengor-at-arms, whose warrant is a copy of the interlocutor (appended to the petition), certi- fied by the clerk of Court. Where the party on whom the service is to be made resides in Scotland, the delivery of a copy to him personally, or the leaving it at his dwelling- plare, is sufTicient. On the other hand, if service on jiarties fnrth of Scotland have been ordcrod, it is made on them at the OflTico of Edictal Citations, under § 22 of the Court of Session Act (13 and 14 Vict., r. 3G), Ogilvy. 28th May 1858, ftiipra ; and if service be ordered on the tutors or curators PROCEDURE. 359 of any minor generally, if he any has, it will be done in the same way as service of a summons in which they are called as defenders. The executions of such service, to be returned by the messenger-at-arms, will be in the old form, and not in the new and short style introduced by the Court of Ses- sion Act, 13 and 14 Vict., c. 36 (§ 20), which is restricted to executions on summonses and notes of suspension, and interdict or liberation, and of advocation. Production of the executions returned is necessary in order to instruct the service ordered. It may be necessary to make service on companies, to whom the provisions of § 137 of the Companies Clauses Consolidation (Scotland) Act, 1845, 8 Vict., c. 17, apply. It enacts that " any summons or notice, or any writ or other proceeding at law or in equity, requiring to be served upon the company, may be served by the same being left at, or transmitted through the post, directed to the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secre- tary, or in case there be no secretary, then by being given to any one director of the company." Service of the petition and interlocutor must, as we have already seen, be asked on the ward to whom a judicial guar- dian is sought, and if not so asked it will be ordered by the Court. The rule that the service must be made personally, in the case of parties alleged to be incapable, admits of no exception : leaving a copy in the hands of the superintendent of the asylum, or any other party, will not do ; MacGregor, 23d Dec. 1848, 11 D. 285. In one case wdiere a party was to be subjected to guardianship on alleged incapacity, the Second Division of the Court not only appointed intimation and service on him, but directed the Sheriff of the county w^here he then ressided, or one of his substitutes, to be pre- sent when service was made, as the party, even although imablo to manage his own affairs, might have reason for ob- 360 PROCEDURE. jecting to the particular person proposed to be appointed curator bonis to liim ; Scott, 7th Feb. 1855, 17 D. 362. Where such special directions are given, not only will an execution by the messenger of the service be required, but a report by the Sheriff or Sheriff-Substitute on the subject, with special reference to any objection which may have been expressed to the party proposed in the petition for the office, should be obtained by the petitioner's agent, and lodged in process. Service of the petition and the interlocutor ordering it may be accepted, and a consent given to its prayer being granted, either in whole or in part, by a holograph or tested acknowledgment on a copy of the petition, or by a formal deed, with reference and as relative to which a copy of the petition is docquetcd by the granters ; Graham, 22d Jan. 1858, 20 D. 432. This of course only applies to cases where the party accepting service can legally grant any such deed or writ. If a minor be a party accepting, his curators, and if a woman be married, her husband, should be consenting parties to the acceptance. In dubi'o, it is always safer to have the legal and formal execution of service by a messenger. These acceptances of service must be produced in jirocess. Acceptance of service on a i)arty's behalf by his known agent has always been recognised in general practice. Where personal interests were involved, it was left very safely to litigants to satisfy themselves that the parties, who acted as agents, were in fact the agents of those whom it was wished to certiorate of the dependence of legal proceed- ings. But where the Court was acting, not as a legal tri- bunal, but afi pater pa fi'ifv, and was only resorted to because (•f the absence and incapacity of the parties most interested in the proceedings before thorn, the duly devolved upon them of satisfying themselves that the parties, who accepted service as agents of persons on whom service had been ordered, really possessed that character. To enable the Court PUOCEUURE. 361 to discharge this duty, they require an agent, who accepts ser- vice of a petition on behalf of any client, to put in process, along with the acceptance, evidence of special authority by the client to that effect (see order issued 11th Jan. 1859). After intimation and service, and until the lapse of the period allowed for lodging answers to the petition, no step in the case can be taken. Accordingly, where the Court were applied to, during the currency of the period allowed for answers, for an interim appointment, they refused it, as the parties interested were entitled to trust to the period named for answers being allowed to them, and might pro- bably be preparing ere it elapsed to oppose the application ; Arnott, 8th March 1844, 16 Jurist, 439. We have already seen that a special prayer for an interim appointment is the proper way in which to apply for such an officer. On the one hand, too long a time must not be allowed to elapse between the expiry of the period alloAved for an- swers and the time of moving in the petition. Although no answers were lodged by any party within the time originally allowed, circumstances may have emerged or altered, so as to warrant opposition to the application. Accordingly, where a petition had been intimated in 1825, but was not moved in until 1830, the Court ordered intimation and ser- vice of new ; Greig, 6th July 1830, 8 S. 1012. On the other hand, too short a time should not be allowed between the service and moving in Court. Generally, as we have already seen, answers are ordered within a specified time — thus eight days — after service. But where an order on parties to lodge answers by a day fixed, such as the next box- day, is taken, the petitioner is not entitled to cheat the respon- dents out of the time the Court intended to allow them for the preparation of answers and advice as to the course to be pursued, by delaying to serve the petition until within a day or two of the date when answers are due ; and if the peti- tioner insists on proceeding with the case, where such objec- 3l')2 I'UOCEDURE. tion is taken aiul substantiated, the Court will refuse the petition ; Duke of Northumberland, 23d Feb. 1832, 10 S. 3CG. In such a case the best way of obviating any objec- tion is for the petitioner to consent to a j)rorogation of the time for lodging answers. Such prorogations are to be obtained of the Court on cause shown. Where petitions are Inner House processes, prorogations are to be obtained, except of consent, by presentation of a MS. note signed by counsel to the Lord President of the Division, before which the petition depends, craving a prorogation; the principal thereof being lodged in process, and a copy served on eacdi party's agent, and also given to that Judge's clerk for enrol- ment. Such petitions, as are presented to tlie Junior Lord Ordinary, are treated as ordinary processes, and are enrolled in his Lordship's rolls among his other motions. Intima- tion of the motion to be made at the calling is sent forty- eight hours previous to all the opposite agents, and it may then be granted or refused. When the original or prorogated time for lodging answers has expired, the petitioner's agent will enrol the cause to have it proceeded with ; and if there be nothing unusual in tlie case his first motion should l)e that the party suggested in the petition should be appointed in terms of its prayer. It is quite competent for a party, on whom the petition and interlocutor ordering service has not been served, liut who, in consequence of the intimation on the walls and in the Minute Book, has become acquainted with its presentation, to comi»ear and crave leave to sist himself to the process. This motion is in practice made by a formal note or minute, which the Court or Lord Ordinary will allow to be received and seen, in order that the interest of the party to compear may bo challenged. As wo saw in our second chapter, very great indulgence in this resjx'ct is granted to compearers in such applications. Such compearer, after being sisted, or indeed any party, PROCEDURE. 363 who can on the moment qualify an undoubted interest, with- out being formally sisted, besides those parties on whom service has been made, may appear and oppose a motion for the appointment being made in terms of the prayer of the petition, without having entered appearance or lodged an- swers ; and if the appointment of a party different from the one originally suggested is to be asked, it is of advantage that all parties interested should appear and concur therein, as the Court will in that case, if the prayer have been framed so as to admit of it, appoint without ordering new intima- tion ; Davidson, 26th Jan. 1837, 15 S. 421 ; Macmillan, 16th July 1851, 14 J). 12. As the intimation and service origi- nally ordered were made with reference to the individual whose appointment the petitioner then intended to ask, new- intimation is ordered when he proposes another for the office, as "otherwise parties have no opportunity of objecting;" Thorburn, 2d July 1846, 8 D. 1000 ; Anderson, 22d Nov. 1854, 11 D. 97. New intimation is necessary even where the appointment of one party, whom failing another, has been suggested, and on the declinature of the first nominee the Court were asked to appoint the other ; Thomson, 6th Dec. 1851, 14 D. 311. Although the petitioner may suggest a party on the failure of another nominee in his petition, the Court will never make the appointment in that way ; Dow, 8th Feb. 1847, 9 D. 616. Where, previous to the transference of such petitions to the Junior Lord Ordinary, confirmation of an interim ap- pointment by the Lord Ordinary on the Bills was sought, the Inner House ordered intimation and service of new, Thomson, 21st May 1856, 18 D. 856; as circumstances might meanwhile have emerged to justify opposition to the application, or at least to the appointment of the party likely to obtain the office, Dixon, 20th Jan. 1832, 10 S. 209. On the assumption that no answers have been lodged, and if no objection be taken to the factor, or new intimation 364 PROCEDURE. be necessary, tlio Court will in all pro])al»ility grant the petitioner's motion for the appointment of his nominee as prayed for. A statement by the petitioner's counsel, that tlie intimation and .service ordered liave all been made and evidence thereof jiut in j)roces.s, requires to precede the motion, and its correctness will be assumed, unless a com- pearer, the Court, or the clerk on examination find that in regard to these matters counsel's instructions have misled him ; l\[acGregor, 23d Dec. 1848, 11 D. 285. But the Court may choose to make avizandum with the process and the motion, in order to their considering the productions, and being satisfied that all the necessary preliminaries have been attended to — by the report of the clerk to the cause, if it be a simple one, or in a more complicated case by a remit to obtain a report or otherwise ; — and in the absence of all con- tradictors, such a proceeding as a general rule would be one which would in the end recommend itself to practitioners, although, with modern prejudices in favour of judicial haste and activity, it might take some little time to bring about such a state of opinion. For tlie adoption of this course there is full authority in section 4 of the Act 20 and 21 Vict., c. C)C). Whenever the Lord Ordinary remits a case for report, it devolves on the petitioner's agent to transmit it to the re- porter, to obtain his report, to lodge it in process, and to enrol, in order to the Lord Ordinary making avizandum there- with. If a reporter do not accept of the remit or die, the case must be again enrolled, to have the remit recalled and a new one made ; Ranken, 22d Feb. 1S48, 10 D. 500. That ca.se occurn.'d before the Act 20 and 21 Vict,, c. 5G, which empowers the Lord Ordinary to deal with .such matters ; and there, as was the practice in the Inner House (P'irst Divi- sion), Dunbar, 7th May 1847. D. 1420 ; Anld, lOtli March 1849, 11 D. 1032, a remit having been made to tlio Junior Lord Ordinary to infpiirf ami rf|M(r(, ho au^ain if miltrd it PROCEDURE. 365 to an accountant, who died pending the execution of the remit. Kecourse had to be had to the Inner House, who recalled it, and of new made a remit to another party ; the Lord Ordinary acting imder the interlocutor as a mere re- porter, and having power only to have made a change of con- sent. The practice of the Second Division of the Court w^as to remit to a reporter direct without the intervention of a Lord Ordinary; Mackenzie, 8th March 1850, 22 Jurist, 372. If the Lord Ordinary grant the prayer of the petition in whole or in part, and make an appointment under it, he will only do so on the ordinary condition of caution being found before extract. The agent's duty is to see that this interlocutor is in all respects technically correct, with spe- cial reference to the extract of it, which has afterwards to be procured (see infra). The interlocutor being quite for- mal, the agent has then to order and take out from the clerk a bond of caution by the factor, and the cautioner, whose name he has previously furnished, to transmit it after revisal for signature by the parties, and for attestation by a justice of peace, to append, on its being returned to him, the necessary certificate by himself, and to lodge it for approval by the clerk (see last chapter as to Cautionry generally). There is no time wdthin which a bond must be lodged with the necessary certificates, in any other cases than those under the Pupils Protection Act, and § 164 of the Bankrupt Act. By the Act of Sederunt of 11th Dec. 1849, it was enacted, with reference to appointments within the scope of the former of these acts, that, when not other- wise expressed in the appointment, the time for finding caution should be one month from its date ; but the Court reserved power, on cause shown in any application before expiry of the month, to prorogate the. time for finding cau- tion. The time allowed to factors under the latter act is shorter, being, by Act of Sederunt of 25th Nov. 1857, de- clared to be only three iceeTcs from the date of appointment, 3GG I'ROCEDUllE. Imt uiulcr a siniiliir ri'.sorvution, and it is added (§ ;')), that "in case of failure to find caution within the time thus allowed, the appointment sliall ipso facto fall." The cflect of this may bo to clear the way for a new appointment ; but even though the provisiini is absent in the Act of Sederunt of 1849, the Court have had nu dilliculty in making new ap- pointments, where either caution was not found, or a pro- rogation was not sought within a month after appointment. Thus where the Court were, on the lajjse of the montli without a bond being lodged, moved to re-appoint the same party, they ordered intimation of new, — a preliminary to their considering the motion ; Lang, 25th May 1850, 12 D. 943. The old ofliccr was appointed de novo on his finding caution in Earl of Ilarrowby, Gth March 185G, 18 D. 733. In fact, the First Division indicated a preference for this course over that of an application for authority to the clerk to receive the bond after lapse of a montli from the date of appointment, as was done by the Second Division in Camp- bell, 21st Dec. 1855, 18 D. 292. Where the aitpointment is made of new, another bond of caution, narrating such appointment, will be required, as was the case where a Bill Chamber appointment came after- wards to be confirmed on the sitting of the Court ; and as is still necessary where a i)arty apj>ointed ad interim is afterwards a]»j)ointed to the oflico. In the other case, the old bond will answer, but the much greater expense of a new petition and relative i)rocedure will have to be incurred. After the clerk is satisfied as to caution (and in its sufli- ciencyall parties are interested), the bonds in appointments under section KM nf the Bankrupt Act are transmitted to the Accountant in Bankruptcy, under the Act of Sederunt of 25th Nov. 1.S57. In all other ca.ses, without exceittion, the bonds are transmitted to the Accountant-General under section 35 of the Pupils Protection Act, which makes him thecu8todierf»f "all bank dei)Osit-receipts, and other vouchers PROCEDURE. ',MJl for sums of money, already placed, or to be hereafter placed ill bank, under authority of the Court, and of all judicial bonds of caution, and other judicial bonds, granted or to be granted under the authority of the Court, or any of the Judges thereof, or in reference to the business thereof." The agent for the petitioner will then get the process trans- mitted to the extractor, to obtain extract Act and Warrant of the appointment, with a note, which has to be prepared by the agent in terms of " the regulations of the extractor s office," which find an approiDriate place in the Appendix to Mr Burness's Parliament House Book. The most important point is to apprize the extractor that the interlocutor con- cludes with the words " decern ad interim" for in that case the extractor has a warrant to retransmit the process, instead of sending it off as a concluded cause to the records ; Fraser, 15th Dec. 1855, 18 D. 264. The reason of the process being still treated to this effect as depending is, that in it not only is the production of the necessary rental and ac- counts made, but all applications for special powers, &c., are reckoned to be merely steps therein, Morison, 5th Dec. 1856, 19 D. 132 ; but it is not considered a depending cause in the meaning of § 4 of the Act of 1857 ; and hence, where the Inner House had appointed the factor, the case fell to be dis- posed of by the Inner House, Horn, 14th Nov. 1857, 20 D. 52. There may be reasons for the petitioner desiring, or the Court ex 2'>roprio motu ordering the petition to be super- seded. That course was followed in MacGregor, 23d Dec. 1848, 3 D. 285, to admit of personal service being made on the alleged lunatic, as the officer had returned an execution bearing only that a copy had been left for him ; and in Primrose (Wishaw and Coltness Kailway Co.) v. Caledonian Railway Co., 14th Jan. 1851, the Court, principally on the ground that there were unsettled questions of accounting between the parties, of which it was necessary to be better informed by the petitioners, refused hoc statu to make the 368 PROCEDURE. appointment sought, and superseded consideration of tlie petition. Where such is the interlocutor, the parties, or either of tliem can afterwards, on obviating the objection whicli the Court tliouglit existed to their proceeding in the cause, enrol it, and crave that consideration of it be re- sumed. In that event, the procedure \\\\\ lie the same as if the cause had proceeded to a termination without the interruption of the interlocutor superseding it for a time, for petitions, it is thought, do not fall asleep (see infra, p. 375.) AVhen a petition is refused, the interlocutor concludes with the word " decern ;" and no further step can take place in the cause, and it may be forthwith transmitted to the records for preservation ; A. B. (Morison), 2Uth June 1854, 16 D. 1004 ; Marshall, 5th Jan. 1859, 21 D. 203. The procedure in a petition, to which no answers have been lodged, is that which is followed where answers are lodged, except that on their being lodged the case should be enrolled by the petitioner's agent, and on his default by the respondent's agent, for the purpose of having the case debated either in tlie Lord Ordinary's motion roll, or sum- mary debate roll, or in the summar roll of the Court. The first step to be taken by a respondent's agent is in this, as in other cases, to enter appearance, and borrow up the process, with a view to the prei)aration of answers by his client. The answers are prepared in the form of a continuous narrative, witli no particular reference to the order of the petitioner's statement, and they may or may not conclude with articulate pleas in law. They require to be signed by coun.'^el like the petition, and to have the order or orders of Court in reference to lliciii prefixed, and arc subject to the same regulations as to printing and box- ing as the petition. Wlien they are lodged, intimation thereof should be sent by the respondent's agent to tlie peti- tioner's agent ; and there sliould at the same time be trans- mitted to tlio latter six ropies thereof. Tn the case of pro(;edure. 3G9 answers beiug put in to a petition for a curator honis, where certificates of sanity are produced, they should be printed and boxed along with them, the principals being produced in process. The same rules obtain in regard to productions with answers as with petitions. The provisions of the Act of Sederunt of 11th July 1828 (§ 86), as to making up a record by condescendence and answers, and thereafter holding the statements of parties as final by an interlocutor closing the record, are not in prac- tice applied to summary applications to the Court. There is hence no record but the petition and answers, unless where the Lord Ordinary or the Court may require further explana- tions, or allow amendments of either of the parties' state- ments, and in these cases, a minute signed by counsel is the form in which these are made. Oral statements at the bar, as they are not available for any after reference which may prove necessary, have been relinquished for the prefer- able form of a minute, which, if there be a respondent, may be allowed to be seen and answered. Although they do not require to be boxed unless ordered by or presented to the Inner House, the minute and answers are in practice printed (with the words " Junior Lord Ordinary" attached if the case be in the Outer House), and are hence available in reclaim- ing (see § 6 of the Act 20 and 21 Vict., c. 56, and our re- marks thereon, supra), or when any point is reported by the Lord Ordinary to the Court under § 5 of the above-men- tioned act. Such reports, it ought to be remembered, are prohibited on the three last sederunt days of the session (see order of 13th July 1844). The cases are very rare in which a regular proof of any averment will be ordered. Where the incapacity of the per- son to whom a curator honis was sought was denied, a proof of it was allowed in Bryce, 21st Jan. 1823, 2 S. 121. But in the recent case of Lockhart, 17th July 1857, 19 D. 1075, the two certificates produced in support of the petition for 2a 370 I'HOCEDUHE. a curator houia were redargued by the ecrtilicates of three medical men produced with the answers, and tliese three certificates spoke to the alleged lunatic's state at a period of more than two months after the date at which he was last scL'U by the medical men who granted the certificates founded on by the petitioners. In that case, the majority of the Judges, in refusing the petition, held it enough to warrant their doing so, tliat the male agnate was a party to it, and if lie wislicd, could adopt the more regular proceed- ing of a cognition — tlie common law remedy. It seems to be a question whether, when the instance of a petition for appointment of a factor or curator falls, e.g., by tlie petitioner's death, a party otherwise qualified may sist himself to it in order to proceed therewith. The point would almost seem to be decided in the negative by an ana- logous case under the Kutherfurd Act; Scott, 16th July 1850, 12 D. 1256. Lord Kinloch, where tlie petitioner died, refused to sist a party, but left him to present a new i)eti- tion in Philip, 7th Dec. 1858 (not reported). If it were to be held competent to sist a new petitioner in room and place of one failing, it would seem tliat, at least, intimation and service of new would be required, as the right, title, and interest of the new petitioner might be open to objections, wliich, as they could not be urged against his predecessor, there was no occasion for any party entering appearance in the case to state previously. We shall immediately see, that in petitions for special powers a new petitioner may be sisted. These detaiLs of the procedure in obtainingthe appointment apply to all the other summary applications made in con- nection with factories. In all judicial proceedings, after caution has been found, service on the cautioner must be asked, and, whether asked or not, will be ordered ; Ruther- ford, 25th Jan. 1845, 17 Jurist, 152; Pringle, 17th Nov. 1832. 11 S. 47; Accountant of Court zj. Wilson, 12th Feb. PROCEDURE. 371 1852, 25 Jurist, 296. There require also to be stated in such application the names of tlie original petitioners, and the dates of presenting that petition, and of the inter- locutor appointing the officer, Scott, 18th Jan. 1856, 18 D. 323 ; together with the same particulars regarding any ap- plications for special powers subsequent to appointment, and previous to the application then to be presented, and a general detail of the course of management. Such are features common to all applications subsequent to that for the officer's appointment ; and although, in a certain sense, as we have already explained, incident to the application for appointment, yet they are not so to the effect of being, where the appointment was madeby the Inner House, reserved for disposal by them alone ; Horn, 14th Nov. 1857, 20 D. 52. There are, however, distinguishing features as re- gards these other applications, and we therefore proceed to notice the peculiarities of procedure which are incident thereto. Applications for special powers are competent in some cases only by petition, and in otliers by petition or by note. Tlie 7th section of tlie Pupils Protection Act, as regards the officers to which it applies, enacts that if at any time there be " a strong expediency for obtaining authority for certain specified acts not within the ordinary course of factorial management, tliey shall report the same to the Accountant of Court, who shall report in writing on the matter, and this report and opinion may he submitted with the note which is presented to the Court for the special authority." Tliis section concludes by authorizing the form of a note, and a certain procedure to be used in all other matters, in whicli special powers were, according to the then exist- ing practice in use, to be granted by the Court. In the re- lative Acts of Sederunt of 11th Dec. 1849, it is enacted that all applications for special powers by officers to whom the statute applies should be made to the Junior Lord Ordi- nary, in the manner and form authorized by the statute ; and 2a2 372 PKOCEDUUE. the Lord Ordinary, before reporting sucli ai)i>lications to the Court, as he could only do before the Act 20 and 21 Vict., c. 56, should order such intimations to bo made as he might deem proper, and might report the same either with or with- out ordering the papers to ])e printed and boxed to the Court, as the circumstances might seem to him to require. By the Act of Sederunt of 25th Nov. 1857, passed with reference to factors under the lG4th section of the Bank- rupt Act (§ 14), it is enacted that " when the factor desires special powers to be granted to him by the Court, he shall submit the proposal by note to tlie Accountant, who, after making such inquiries as may appear to liim to be proper, shall report his opinion thereon in writing, and that report shall be produced with the application to the Court." The next section provides for obtaining a report by the Account- ant in Bankruptcy upon anj' state of funds and scheme of division, to which the factor may seek the Court to inter- pone its authority. It will thus be observed that, as regards the form of such applications, it is left to the operation of the rules of general process. In cases not under the Pupils rrotection Act, whether the special powers are to be sought by the factor, or l>y an- other party, petition is the form in which the application will be made ; and in all cases under the Pupils Protection Act parties, other than the officer himself, must apply to the Court for special powers by petition. Who the parties to be petitioners for special powers may be, has been set forth in Cha])ter TI. ; and the circumstances which justify such ajjplications are the sul)ject of remark in Chapter III. The prayer of the petition or note should, beside intima- tion and service, to which our former remarks on that sub- ject are applicable, ask the Court, on resuming consideration of the case, with or without answers, to grant the powers alleged to be necessary or expedient, which should be speci- fically detailefl in the petition, and for authority to charge PROCEDURE. ■ 373 the estate with the expenses of the application, and to de- cern ad interim. A broad prayer is, for the reasons already stated, much more convenient than a narrow one. The jealousy, with which the Court have always regarded such applications, for the reasons explained in our third chapter, has made an examination, by the most effective means in their power, indispensably necessary in the pro- gress of such processes, and no unproved allegations of urgency have weighed with the Court, and they will not allow them- selves to be induced to grant special powers, without being- satisfied of the existence of necessity in cases where that alone justifies their granting the application (see Chapter III.), or of expediency, where statute has rendered that all that it is requisite to substantiate ; Auld, 10th March 1849, 11 D. 1032. While such petitions were only competent in the Inner House, the Court proceeded to make the investi- gation by remits, either, as in the First Division practice, to the Junior Lord Ordinary, in order that he might obtain the reports of accountants, men of business, or other practical men, after an examination into the circumstances ; or, as in the Second Division practice, directly to these parties with- out the intervention of another Judge. Since the passing of the Court of Session Act of 1857, 20 and 21 Vict., c. 56, the Junior Lord Ordinary is empowered to dispose of such applications, "after making such investigation, and requiring such assistance from professional persons or persons of science or of skill, as he shall judge proper." Such remits are not to be made to parties already or likely to be in any way interested ; Esson, 28th Feb. 1856, 18 D. 676. A question may be raised under the above clause, as well as under § 7 of the Pupils Protection Act, as to the Junior Lord Ordinary's power to allow proof where there are oppos- ing parties ; but it is thought that the expression " such investigation " — " as he shall think proper," in the one Act, and " inquiry," in the other, would be held not to exclude 374 PROCEDURE. ^vllat is the bust iiioJo uf uhliiiuing the matiiials lur a judg- ment on tlie merits of the case before hiiu. Proof was allowed by the Inner Huiise, where the application of a curator bom's was opposed by the heir of the incapable ward, in Lindsay, 17th Feb. 1857, ID D. 455 ; and, before the adoption of summary petitions in place of actions of cogni- tion,a proof — as we saw in the third cliapttr — was the usual mode of proceeding. The Junior Lord Ordinary was not always the Ordinary to whom the Inner House remitted petitions, if there were good grounds I'or any cxceiition being made to the general rule, such as contingency ; Kerr's Trs. v. Moody, 19th June 1850, 12 D. 1041. In consequence of the peremptory terms of the enactments of tlie Pupils Protection Act, not only is this power of remitting cases under it to another Ordinary than the Junior Lord Ordinary excluded, but the act has effected the repeal to a certain extent of the provision of the 9tb section of the Act of Sederunt of 22d Dec. 1838, that " there shall not as heretofore bo successive transferences of the causes, depending before the Judge who previously ofii- ciated in the Outer House and the Junior Lord Ordinary respectively, but the .lunior dudge, in like manner as the remaining Lords Ordinary, shall conduct to a conclusion all the causes ordinary as well as summary then depending before or remitted to him ;" Kankcn, 22(1 Fob. 1848, 10 D. 5G0; Kirkwood, 13th F. 1.. ls:..\ 1 7 I >. IIG. But, as we nhall afterwards see, a distinction obtains as to petitions for discharge presented under the 34th section of the Pupils Protection Art, which can bo remitted by the Court as for- merly. 'Ill'- .liinii>r Lord Ordinary, undtr ihc jirovisions of the Act of 1857, 20 and 21 Vict., c 50, has now jurisdiction in the first instanre in all the suiMUiary nj)pli('ations therein mentioned. It may be that, in consciiuencc of deficiency of proof, tht- non-arrival of the time for the beneficial exercise of thf PROCEDURE. 375 powers asked, the emergence of circumstances which obviate tJie necessity of conferring extraordinary special powers, or some other cause, applications for special authority may be refused in hoc statu, or superseded either in whole or in part ; Auld, 5th Feb. 1856, 18 D. 487. This course is followed because of the saving of expense to the estate, and the peti- tion or note can be again moved in, either with or without intimation of new, as the Lord Ordinary may direct, and the merits thereof examined into and disposed of. As there is not an objection in point of principle, where the factor is petitioner, to the successor in office sisting himself as the applicant in any unexhausted petition for special powers, that course is adopted. Chambers, 27th May 1856 (not re- ported) ; but the preferable mode of accomplishing the ob- ject is to petition at the successor's appointment for the special powers, which the predecessor was in cursu of asking when his office either expired or was r,ecalled. Where the application for special powers has been super- seded or refused hoc static, and a year and day ensue without any movement therein, there is room for the contention that wakening is a necessary preliminary to any further procedure therein ; but it is thought that such cases do not fall asleep by lapse of year and day, as do ordinary Outer House cases ; — not only are they not Outer House actions, but as summary applications they have every privilege they formerly possessed as Inner House processes, unless they have been deprived of them by express statutory enactment.* There is only one case in the books where the Court ex proprio motu, and without an application for that purpose, granted special powers to an officer. That case was Towers, 17th Feb. 1848, 10 D. 720, and occurred in the Second Division. It having been discovered that there was a balance of funds in the hands of a curator horn's, the Court * The point is raised in a case (Penny) at present before Lord Jerviswoode, and it is understood he is to report it to the Inner House. 37G IMtOCEDURE. thereupon authorized the curator to invest thtin in the pur- chase of RU annuity for the lunatic ward. In the hist chapter we had occasion to notice how beneficial it would he for ollicers, alike with their cautioners, if interim audits were more frequently applied for, and these parties are, unless the estate be small and cannot stand the ex- pense, entitled, when they think proper, to make such ap- plications ; Graham, IGth July 1841, 3 L>. 1234. The pro- visions of the Pupils Protection Act in his behalf are so far well, hut their object is diflorent, and the act in no degree dispenses with a judicial discharge. A petition is the only means of obtaining interim audit, and the ascertainment of a balance pending the judicial management. Such a petition should contain a narrative of the manage- ment up to its date, and state that it was in every way ad- visable that the factorial accounts up to that time (to br produced with the application), should be audited adinteri'ni, and the officer's commission and the balance in his hands judicially fixed and ascertained. It should then pray (after intimation and service as suggested above) the Court, with or without answers, to remit to the Accountant to examine and audit the accounts and to report, and thereafter, ctn a report from him, to ajiprovc of the said accounts, to declare the balance due thereon, to find the petitioner entitled to the expenses of the application out of the estate, and to de- corn cid interim ; Robertson, 17th July 1841 , 3 1). 1264 ; A. B., 20th June 1854,10 D. 1004; Moiison.Mh Dec. 185G,19 D.132. The Accountant-General is the party to whom the Lord Ordinary will remit the accounts of officers under the Pupils Protection Act, Mackenzie, 8th March 1850, 22 Jurist, 372; and the Accountant in Bankruj>tcy is the party to whom the accounts of officers under section KJl (jf the Bankrupt Act will be remitted ; but there is no provision in the statutes which requires this to be done to the exclusion of another reporter. By section Ift of the Piijiiis Protection Act, the PROCEDURE. 377 former is allowed to take remits in regard to any matter in dependence before the Court, and the Court have accordingly made remits to him as an Accountant ; Stewart, 28th Feb. 1850, 12 D. 744. The report when- obtained should, by an interlocutor,, be allowed to be seen by all concerned for a certain fixed time, within which objectors will fall to put in specific details of the grounds on which they object to the report. If no ob- jections, on the other hand, are lodged, avizandum may be made; and, wither without a debate, the Lord Ordinary wdll dispose of the matter. If objections are put in, the Lord Ordinary wdll order answers to them, and after the answers are put into process, the parties will revise their respective papers ; but here, as in other matters of record, the provisions, which regulate finality of statement by a formal closing of it, do not apply in practice, as their operation is limited to ordinary actions. A debate will follow, and a decision, wdiich may be-reclaimed against, will be obtained from the Lord Ordinary, if the peti- tion have been presented to him ; but if not so, he will not decide the case, but only report it to the Inner House, who will dispose of the objections and answers ; M'Ewan, 27th June 1857, 19 D. 936 ; Doud, 21st Jan. 1847, 9 D. 511 ; Rennie, 27th Jan. 1849, 11 D. 457; Myles, 13th Dec. 1855, 18 D. 205; see section G8 of Act of Sederunt of 11th July 1828. The report obtained may reserve points for the considera- tion of the Court ; and these wdll fall to be disposed of (with- out objections and answers) after discussion by the Lord Ordinary or the Court, who may thereafter remit of new, in order to the decision being given eff'ect to. Although the new report thus obtained will have to be formally approved of in an interlocutor, it will not be open to the parties to re- new their former discussion ; but reconsideration of the whole matter may be obtained by reclaiming to tlie lunei' House, if the case be one where the Lord Ordinary has given a decision. 378 ruocEDURE. A judicial audit canuut, by mcaiis uf an (.xtrajudiciul dis- charge by tlie successor in favour c»f liis predecessor, bo dis- pensed with, as we shall see can be doue iu some cases of recall of the management ; Tweedie, 2lst Nov. 1844, 17 Jurist, 72. Where these interim audits have been applied for more than ouce in the course of the judicial management, and questions of importance determined in such applications, one can easily cunceive the propriety of parties suggesting, while these cases were only competent in the Inner Uouse, that the Lord Ordinary, to whom either all or the last of these ap- [)lications had been remitted, should be constituted special reporter in the case. In cases wliich may be presented to the Inner Uousc, the Court has still the power to adopt a course, which in its practice was often followed with great advantage to the parties, alike with the Junior or other Lord Ordinary, who would have l)een quite new to the case and its intricacies. Section 34 of the I'uiiils Protection Act, whidi is the only one which aflccts applications for discharge, does not, like the other sections of that act, imperatively enact that the Junior Lord Ordinary shall be the only Judge to whom the Court can remit in tliu matter ; Guthrie, March 18r)9 (not reported). In consequence, the practice formerly followed is still competent, and the Judge to whom such a remit is made is emi)owered to deal with the case, under the provisions of the Act of Sederunt of 22d Dec. 183H, during all the time he remains in the Outer House. All possibility of arranging to have subsequent audits carried on before the same Judge is now impossible, if the apjilications are presented in the Outer House, for there the statutory Judge is tho Junior Lord Ordinary, whoever he may be at the time. I'nt the i)rinciple of cumulative juris- diction, to which, we shall see immediately, effect has bocn givcJi in some cases, would, if it were allowed its legitimate scope, enable parties to choose tlxir own tribunal, and go to PROCEDURE. 379 the Inner House in cases where evident advantage would result from the old practice. The expense in any case, where there are not counterbalancing advantages, is suffi- cient to secure the Inner House from having their rolls en- cumbered with any number of such applications, and from being reduced to that condition which the Act of 1857 was passed to remedy (20 and 21 Vict., c. 56). The remarks we have already made on Inner House pro- cedure sufficiently indicate the course to be followed in those applications which, having been omitted from the enumeration of those transferred by the Act 20 and 21 Vict., c. 56, are still only competent before one or other of the Divisions. Petitions for recall, whether of an officer's ap- pointment or of the factorial management, are not compe- tent before the Junior Lord Ordinary, in direct opposition to the general rule of law, that the Judge who appoints is the only Judge competent, in the first instance at least, to the recall of the appointment ; Esson, 14th Feb. 1842, 4 D. 739. Recall of the management is now never sought where the factory can be held to have expired, such, as by the attainment of puberty, or majority, or the death of the ward, or by the execution of all the purposes of a trust, the par- ties contenting themselves with merely an exoneration and discharge,' which is competent before the Junior Lord Ordi- nary. The procedure in an exoneration and discharge in the Outer House will be seen from our remarks in connec- tion with the combined applications. On the other hand, recall of sequestration, and of the curatory of an incapable, where he has survived the incapacity, is still as necessary as ever. But we discussed this subject fully in our second chapter. The distinctive peculiarity of petitions for recall of an appointment, as compared with the other kinds of recall, is that after a prayer to the Court, with or without answers, to recall the factor's appointment, there is inserted a prayer for the appointment of a successor to him, followed by a 380 rUOCEDURE. prayer for an order on tlu- factor to lodge accounts, a remit of these accounts for audit and report, and, after report, for approval, and to fix the balance. The petitioner will also ask that, in the event of a balance being found to be due by him, the old factor and his cautioner be decerned and or- dained to make payment thereof conjunctly and severally to liis successor, or, in the event of a balance being due to the old factor, to authorize his successor to pay such balance out of the estate. The petition will further ask the Court, upon his making payment of such balance (if any) as may be due by him, to exoner and discharge the former factor, and also his cautioner, of the factory, and of the whole actings, intromissions, and management had under the same, and to appoint the bond of caution to be delivered up. The peti- tion should also ask the Court to find the petitioners entitled to their expenses out of the estate, and to decern ad inicrim. Under the impression that the Inner House have lost their right to ai)point factors, some practitioners have, simul et semd, presented one application for recall in the Inner House, and another for a new factor in the Outer House, ^lackay, 10th Feb. 1S59 (not reported) ; but this multiplication of pro- ceedings is unnecessary, if the Inner House have a cumula- tive jurisdiction with the Junior Lord Ordinary in all sum- mary applications, as seems to have been held in Mathew v. Pattullo, 13th Nov. 1858, 21 D. 18. The object of asking the appointment of a successor imme- diately after recall is to prevent the estate or ward being left v.ithout a guardian, and also to obtain the nomination of a party to stand as contradictor in the audit of the former ofli- cer's accounts, to which he will sist himself; Stewart, 20th Feb. ISnO, 12 D. 744. If the former oflirer had obtained special powers, the now (»nicer will be entitled to obtain these, if unexecuted by his ]»rodece88or, on appointment, and a special |»rayor to that efTeut of the management, to ask for the appoint- ment of an officer to protect the estate or ward. This will arise where it is necessary to chorir/c the officer, as where l)Upilarity has expired, or incapacity has supervened, or tlie ward has gone out of the jnriMlirtjc.n. Tn lliese cases the PROCEDURE. 383 procedure, in the first instance, will be similar to that which takes place where recall of the appointment only is sought. But such combined applications at the termination of a fac- tory were always very exceptional. Tlie parties who can ask recall of the judicial manage- ment are a much more limited class than those who can apply for recall of the appointment, as we showed in our second chapter. As regards the statements to be made in these applications, our former remarks are applicable, and its prayer will be for recall of the sequestration or of the oJBfice, an order on the officer to lodge accounts, a remit of these accounts for audit and report, and after report for approval, and to fix the balance. The petitioner will also ask that, in the event of a balance being due by the factor or other officer, he and his cautioner be decerned and or- dained to make payment thereof, conjunctly and severally, to the petitioner ; or, in the event of a balance being due to the factor, for a decerniture in his favour against the petitioner therefor. It will then conclude by asking the Court, in the event of the factor's making payment of the balance, if any such be found due, or otherwise forthwith, to exoner and discharge him and his cautioner of the factory or cura- tory, and of the whole actings, intromissions, and manage- ment had under the same, and to appoint the bond of caution to be delivered up, and to decern. Where the recall and exoneration is sought by the officer or his representatives, provision should be made by an alter- native prayer for his or their obtaining their discharge on consignation of such balance as may be brought out in favour of the estate, and which, on his or their doing so, the Court will grant; Duncan, 20th Dec. 1851, 14 D. 313 ; M'Ew^an, 27th June 1857, 19 D. 936, But where a proper contradic- tor can be obtained, the officer will not be discharged unless he has called him ; M'Gavin, 21st June 1821, 1 S. 79. The petitioner must substantiate the grounds on which 384 I'ROCEDUUE. recall ol' the manageiinjul is uskcd : such us lh;it the lormor ward has attained majority, by certiiicatcs of hirtli, Walker, 18th Jan. 184:^, 5 D. 422 ; or tljat incapacity has been re- moved, by medical certificates, Forster, 23d Dec. 1848, 11 D. 1031. Where the appointment sought to be recalled had proceeded on certificates of inctirablc insanity, and in support of tlie recall a certificate of recovery by one of the doctors who granted the former certificate was produced, the Court made a remit to have a special report on the case ; Tait, 23d Jan. 1858 (not reported). The procedure in connection with the audit of the ac- counts is similar to that wiiich we have just noticed, as fol- lowed in petitions for recall of the appointment. It liappens sometimes that, after an oflicc has expired, the officer may have continued to intromit with the estate. In that case the accounts must be closed, and the balance struck at the termination of the oflicc, ]3aird, lath June 1854, 26 Jurist, 498; but the officer must account for that balance from and after that date, until he divests himself of the estate, and penal interest will run under the Pupils Protection Act, if it ai)plies to the case, until divestiture ; Accountant of Court V. Wilson, 12th Feb. 1852, 25 Jurist, 296 (sec Chap. III.). It would seem not to be necessary in all cases to have a judicial audit. The Court hold, where they are satisfied that the party having the real interest in the estate under their management is to be found, that their oflicer must account to his satisfaction in the first instance, and if tliat l»arty has discharged their oflicer and his cautioner, they - point niont of managers of l)urghs will bo sought, but also warrant ftr a m-w election of councillors, under 16 Vict., c. 20 (14th June 1803), " An Act to provide for the supplying of vacancies in town councils of burghs in Scotland, conse- quent on null or irregular elections " (see section 1). But it is Very doubtful, on the grounds explained in our first chapter, whether such applications can be held as now made comi>ctent before the Junior Lord Ordinary, by the Act 20 and 21 Vict., cap. 5G, § 4 ; for, although " summary peti- tions and applications," they are not included, any more than sunimarypetitions for recall,of which we have already treateil, in the enumerated cases which alone the act transfers. At any rate it is thought that the Court would have a cumula- tive jurisdiction in all such applications, as seems to have been held in the case of Mathe^v, 13th Nov. 1858, 21 D. 18. It would farther seem, from the strict verbal construction to which the Pupils Protection Act was subjected in ]\rorison, 21st Feb. 1807, 19 D. 504, that the 10th section of the 20 and 21 Vict., c. 50 will not give any jurisdiction to the Lord Ordinary on the Bills in vacation in regard to the ap- pointment of managers of burghs ; and if so, the jurisdiction of the Lord Ordinary in the Bill-Chamber at common law must be resorted to as formerly, while the Court is not sit- ting. Interim appointments of managers are (juite compe- tent ; I'hili., 24th Dec. 1831, in S. i:)2. Intimation of such applications, together with all other petitions relative t(»l)urghs, is generally sought on the door of the town-hall of the burgh. But " all petitions and apjdications uii(l« r iiny nf (Ik! ficnc- ral Railway Acts, or under the Lands Clauses Consolidation (Scotland) Act, 1845, or under any local or i)ersonal Act,"' whether for factors under them, or in reference to matters of factorial management, are to be l)rought before the Junior lif>rd Ordinary. PROCEDURE. 391 The Accountant-General, under the Pupils Protection Act, and the Accountant in Bankruptcy, with reference to factors under the lG4th section of the Bankruptcy Act (19 and 20 Vict., c. 79, §§ 159-162, 164, and 165, and relative Act of Sederunt of 25t]i Nov. 1857), may make orders and present reports to the Court, and the procedure therein we will now shortly notice. Of course all extrajudicial procedure before these officers is not within the scope of this treatise ; and, as it is unnecessary to detail the initiative steps of judicial pro- cedure instituted by these officers, we confine ourselves to the procedure to be taken on behalf of a party whom they have forced to defend himself in Court. Parties thus brought into Court are virtually respondents or defenders, and are entitled to the position and privileges of such ; and although the 20th section of the Pupils Pro- tection Act empowers the Accountant of Court, at all times when requisite, to make reports as to disobedience of the orders or requisitions he is authorized by the 19th section to make, the Lord Ordinary or the Court can only deal " with the matter as accords of law." This enactment does not warrant any decern iture without previous intimation to the parties reported against, at least if they are different from the factor, for without special statutory authority to proceed in absence, and without intimation, such a proceeding would not be " as accords of law ;" Lumsden (Western Bank Liquida- tors), 14 Dec. 1858, 21 D. 110. The above reservation as regards the factor is necessary, in consequence of the pro- visions of § 19 — " that if such requisition or order shall be disobeyed or neglected, he (the Accountant) shall report the same to the Lord Ordinary, giving previous notice to the factor or his agent, who shall lodge objections in writing, if he any has, within forty-eight hours after such notice ;" and in the cases of JafiTray, 20th Dec. 1851, 14 D. 292 ; Ac- countant of Court V. Wilson, 12th Feb. 1852, 25 Jurist, 296 ; Dewar, 8th Dec. 1853, 16 D. 163 ; Baird, 29th June, 1858^ 3i>2 PUOCEDrRE. 20 D. 1176, the Court at once proceeded to order the dis- obedient officer to appear in Court. On the other hand,they, in tlie cases of Geddos, 29tli June 1858, 20 I). 1174, liaving considered the Accountant's report, ordained the officer to consign, but " the Lords direct that this order shall be served on the said curator and his cautioner, under the directions of the Acc(unitaut of Court, and under certification tliat procedure will ensue in case of default." The procedure, adopted in the above case of the Account- ant-General v. Baird, 29th June 1858, 20 D. 1176, illustrates the manner, in which objections to orders of the Accountant, to which he seeks to have the Court's authority interponed, may be raised and disposed of, although it would seem to be very doubtful whether, when the Accountant resorts to tlie Lord Ordinary under section 10 of the act (although by section 20 he might have gone at once to the Court), he can report the matter to the Inner House. That, however, was the course Lord Kinloch adopted at the request of parties in Baird's case, and in this way was not judicially adverted to. At the same time, the First Division seem to have had the difficulty of their position suggested to them when they came to pronounce judgment, for, although section 19 em- l)owers the Lord Ordinary " to recall or vary, confirm or repeat such requisition or order," they found it necessary to " remit to the Accountant to recall in hoc statu his order upon the tutor to consign." Why the Court remitted to the Accountant to do this, as he seems to 1)0 as incapable under the act of recalling an order brought up under section 19 as the Court were, and not to the Lord Ordinary, who had the power, is not easily seen. That soction (19) further enacts that " the interlocutor of the Lord Ordinary shall be final and conclusive against the Accountant, and also against the factor, unless he shall, at the time of pronouncing judgment, give notice of his inten- tion to bring the judgment under review, in which case the PROCEDURE. 393 Lord Ordinary shall dispose of the matter of expenses, and give any interim order that may be necessary, which interim order shall not be subject to review." This would seem to necessitate the presence of the factor or his counsel at the time of disposal of the case, which the Lord Ordinary would therefore not be able to do at chambers. If he were, the only safe course to take would be to hold the factor as en- titled to claim review, and to dispose of the expenses, and any matters requiring an interim order ; the exclusion of review, which may thus be so simply operated, is an argument for the remedy, which in any event we submitted in last chapter was competent to the cautioner, being also open to the factor, viz., suspension or reduction. Objections to the Accountant-General's orders or requisi- tions may be to their competency. Thus, in the case of the Accountant v. Baird, 29th June 1858, 20 D. 1176, it was objected that the requisition was incompetent, as those orders which were contemplated by the statute refer ex- clusively to acts of management, and not to the payment of damages for acts of dereliction of duty. Besides, the requisi- tion was objectionable, in respect that the Accountant thereby attempted to enforce reparation for an alleged breach of duty, which had never been made the subject of a previous requisition. The decision of these minor points was waived in consequence of the importance of the merits involved, which the Court decided against the Accountant. In that case the Accountant of Court had appointed the officer to make consignation, within one month, of the value of certain shares entered in the inventory of the estate ; but this would seem to be a questionable exercise of power on the part of the Accountant, as the only occasion, in which consignation is alluded to in the act as within his province, is in section 16, where a power to order a cautioner to con- sign a balance is what is conferred; supra, p. 311. As we saw in last chapter, the only obligation under which a cautioner 394 PUOCEDURE. comes is a personal one, and the Aecouutant is not entitled to extend its legal ellect, and to obtain a deposit of money in room of a security by personal obligation, which, until the ascertainment of a balance against the ollicer, is not cll'ectual to warrant an order for payment or consignation of any sum. To the Court, except in tlic case of an ascertained balance, resort should be had for an order for consignation, and this was the course adopted in the case of the Accountant v. Geddes, 29th June 1858, 20 D. 1174, where the officer not only had intermeddled with the estate and removed it be- yond the jurisdiction of the Court, but was unable to get it back by reason of the obstinacy of the person in whose name it had been invested; and the Court held tluit, having meddled with the fund, the officer must, ante omnia, replace it within their jurisdiction. The Accountant in Baukru^jtcy possesses, as regards fac- tors under § 164 of the Bankrupt Act, very similar powers to those with which the Accountant of Court is vested. He might, under § IGl, have reported a defaulting officer either to the Lord Ordinary (by § 4 this is declared to be only " the Lord Ordinary officiating on the Bills in the Court of Ses- sion ") or to the Inner House, but by the Act of Sederunt of 25th Nov. 1857, all proceedings under the statute are ordered to be brought before, dealt with, and disposed of by the Junior Lord Ordinary, or by the Lord Ordinary on the Bills in vacation, subject to review of the Inner House, in con- formity with the 4th srction of the Court of Session Act of 1S57, 20 and 21 Vict., c. 5G. It falls to be remarked that this last-mentioned act only transfers to the Junior Lord Ordinary such summary petitions and applications as were wont to be presented to the Court, and hence that recourse to the Lord Ordinary on the Bills during session may still be had by the Accountant in Bankruptcy. His power to re- port to the Lord Ordinary on the Bills during vacation is not affected Ity the enartmonls of the 20 and 21 Vict., c 56. PROCEDURE. 395 By the last-mentioned act (§4) all petitions, applications, and reports under the Act 12 and 13 Vict., c. 51 (the Pupils Protection Act), arc directed to be brought before the Junior Lord Ordinary, and it has been contended that thus not only the option, which the Accountant-General had under § 20, of reporting to the Inner House directly, is taken away, but — as all these proceedings are included in the enact- ment — the power which he possessed of reporting to the Lord Ordinary on the Bills in vacation has ceased. During session there can be no doubt as to the tribunal to which he must report, but as in vacation, under § 10, the Lord Ordinary on the Bills has only power to deal with " petitions for the appointment of factors," &c., and has no jurisdiction under it as regards the other " applications and reports," with which the Junior Lord Ordinary is empowered to deal, the question arises — whether the power, undoubtedly possessed by the Accountant-G-eneral previous to 1857, of reporting to " the Lord Ordinary on the Bills in the time of vacation " (Pupils Protection Act, § 1) is repealed by the Act 20 and 21 Vict., c. 56 ? Now, by section 5, it is only laws and sta- tutes inconsistent with the act that are thereby repealed, and that repeal is only " to the effect of rendering the provi- sions of this act operative and effectual.". But the act merely transfers all " petitions, applications, and reports," under the Pupils Protection Act, which were competent " to the Lords of Council and Session," and declares that all peti- tions and applications of that limited description " shall be 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," leavino- un- touched those provisions of the Pupils Protection Act be- tween which and it there was no collision. The Pupils Pro- tection Act conferred a jurisdiction on the Lord Ordinary on the Bills in vacation, which, instead of being affected, seems to have been sedulously protected by the words of § 10 396 PltOCEDUUE. of the Act ut" ibul, wliicli coudnes the jurisJicliuu it confers on the Lord Ordinary on the Bills to petitions, and such petitions only as during session could. have been taken in the first instance before cither of the two Divisions of the Court previous to 1857. Hence it is thought that recourse to the Lord Ordinary on the Bills in vacation, at least in re- gard to applications and reports, is as open to the Account- ant-Gtneral as ever. We arc aware that some of the Judges who have sat on the Bills have doubted their powers during vacation since the passing of the Act of 1857, but we incline to the opinion that the jurisdiction of the Lord Ordinary on the Bills, under the Pupils Protection Act, remains unaffected by the later statute. The Lord Ordinary on the Bills during vacation does not seem entitled, under § 10 of 20 and 21 Vict., c. 56, to deal with any petition not " enrolled or brought" before himself, as his powers in regard thereto are the same as those con- ferred on the Junior Lord Ordinary by § 3, and he has only power to deal with cases enrolled and brought before him- self; and accordingly it was found that petitions, which had been brought before the Court ])revious to the passing uf the act, could not be dealt with by the Junior Lord Ordinary; Horn (Taylor's Trs.), 14th Nov. 1857, 20 D. 52. The Junior Lord Ordinary, any more than the Ordinary on the Bills in vacation, has no power of delegation under the Act 20 and 21 Vict., c. 5G ; but he might, in a case which re- quired to bo proceeded with in vacation, and to remove all doubts, report the case to the Court under § 5, who could empower the Lord Ordinary on the Bills to dispose of it. This subject is discussed in the commencement of our first chapter, in connection with other questions of Jurisdiction. APPENDIX, INDEX TO APPENDIX. I. Acts of Parliament — 1. The Companies Clauses Consolidation (Scotland) Act, 1845, — 8 Victoria, chap. 17, — Sections 66 and 67, 2. The Pupils Protection Act — 12 and 13 Victoria, chap. 61, . 3. The Bankruptcy (Scotland) Act, 1856—19 and 20 Victoria, chap. 79, — Sections 4, 169 to 162 inclusive, 164, and 165, 4. Court of Session Act, 1857, — 20 and 21 Victoria, chap. 56, — Sections 4 to 7 inclusive, and 10, . 6. The Titles to Land (Scotland) Act,— 21 and 22 Victoria, chap. 76, — Sections 20 and 21, . II. Acts of Sederunt — 1. Act of Sederunt of 13th February 1730, . 2. Act of Sederunt of 11th July 1828,— Sections 83 to 90, 3. Act of Sederunt of 24th December 1838,— Section 9, 4. Act of Sederunt of 13th July 1844, 5. Act of Sederunt of 11th December 1849, 6. Act of Sederunt of 1st February 1860, 7. Act of Sederunt of 11th March 1851, 8. Act of Sederunt of 25th November 1857, XXVll xxix xxxi xxxii xxxii xxsiii XXXV XXXV III. Circular issued by the Accountant-General to OfHcers under the Pupils Protection Act, .... xliv IV. Forms — First, Applications for Factor, &c. — 1. Petition for a Factor under Companies Clauses Consoli- dation (Scotland) Act, 1845, . . . . lii 2. Petition for a Factor under Section 164 of the Bankruptcy Act, ....... liv 3. Petition for the Appointment of Managers of Burghs, . liy 4. Petition for the Appointment of a Factor on a Trust-Estate, Ivii 5. Petition for the Appointment of a Factor on an Intestate Estate, ....... Ix 6. Petition for the Appointment of a Factor loco absentis, . Ixiii 7. Petition for the Appointment of a Factor on a Partnership Estate, ....... ixiv IV INDEX TO Ari'ENDIX. PAOK IV. Forms — First, Applications for Factor, &c. — continued. 8. Petition for tlic Apixiintniont of a Factor loco tiitorit. Ixvi 9. Petition for the Appoiutment of a Curator boni* to u Minor capaz, ...... Ixviii 10. Petition for tlie Apjxiintmont of a Factor loco tutorit and a Curator 6onM to Minors of the sumo family, . ixix 11. Petition for the Appointment of a Curator bonia to a Minor or other party incapajc, .... Ixxi 12. Prayer of a Petition for an Interim Appointment, . Ixxiv 13. Petition for the Appointment of a Factor pending Liti- gation, ..... Ixxiv 14. Petition for the Appointment of a Factor on a lapsed Statutory Trust-Estate, .... Ixxvi 15. Conclusion of a Summons, in which payment alternatively asked to a Factor to be appointed by the Court, . Ixxviii Second, Applicationt for Special Powers — 1. Petition by a Judicial Factor on a Trust-Estate, for power to complete a Title to, and to sell and divide testate, . Ixxix 2. Petition by a Factor loco tutoris, for Autliority to complete Titles, ....... Ixxxii 3. Petition by the Factor on an Intestate Estate, for Power to Uplift a Consigned Funn'u\ : ami upon such ai»i)oint- ment being made, all such tolls ami sums of momy as aforesaid shall be paid to and received by the person so to be appointed ; and the money so to be received shall be so much money received by or to the use of the party to whom such interest, or such principal and interest, as the case maybe, shall be then due, and on whose behalf such judicial factor shall have been appointed : and after such in- terest and costs, or such principal, interest, and costs have been so received, the power of such judicial factor shall cease, and he shall be botmd to account to the company for his intromissions or the sums received by him, and to pay over to their treasurer any balance that mav be in his hands. 2. Act of Parliament for the Better Protection of the Pro- perty of Pupils, Absent Persons, and Persons under Mental Incapacity in Scotland. 12 ct 13 Yict., cap. 51. [2Sth July 1840.] Whereas an Act of Sedenint wfis passed by the Court of Session in Scotland, on the thirteenth day of February one thousand seven hundred and thirty, setting forth that the Court had often been applied to for appointing factors on the estates of puj)il8 not having tutors, and of persons absent who had not sufficiently empowered persons to act for them, or who were under some inca])acity for the time to manage their own estates, to the end that the estates of such pupils or persons might not suffer in the meantime, but be preserA'ed for the behoof of siich j)ersons and all having right therein, and therefore establishing certain regnilaliuns in regard to the conduct of such judicial factors, which regulations are still in force : And whereas the applications to the Court of Session for the ajtpointment of such factors have become veiy numerous ; and it has been found that the existing regulations and the {)resent means of enforcing them are imperfect and iiisiiflicient for preventing in many instances the occxn-rence of great irregularity in the conduct of such factors, and in conseqnenco thereof great loss has resulted to the funds and estates under th*'ir charge, and to the parties in- terested therein ; and it has thepfuio become necessaiy to make further jirovision in that behalf: And whereas it is also expedient to make provision for the more regidar accounting and official man- agement of persons who shall hereafter be served as tutor of law, or appointed as tutor-dative to any pupil. >>x be servetl as curator, or PlTPfLS PROTECTlOiV ACT. VII appointed as tutor-dative to any insane person or idiot : May it therefore please your Majesty tliat it may be enacted ; and be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same. Interpretation of Terms in this Act. § 1. That the following words and expressions in this act shall have the meanings hereby assigned to them, unless there be something in the subject or context repugnant to such construction (that is to say), the expression " Judicial Factor" or "Factor" shall mean factor loco tutoris, factor loco absentis, and curator bonis ; the word " Tutor" shall mean any person who, after the passing of this act, shall be served tutor of law to any pupil, or be appointed tutor- dative to any pupil or insane person or idiot ; the word " Curator" shall mean any person who, after the passing of this act, shall be served as curator to any insane person or idiot ; the word " Account- ant" shall mean the accountant of the Court of Session, to be appointed under the authority of this act ; the expression " Lord Ordinary" shall mean the Lord Ordinary of the Court of Session, discharging the duties of junior Lord Ordinary in time of Session, and the Lord Ordinary on the Bills in the time of vacation ; the ex- pression " Court of Session" or " Court" shall, excepting as to the power of passing acts of sederunt, mean either division of the Court of Session ; the word " Estate" shall include all property and funds, and all rights heritable and moveable ; the word " Lands" shall include all heritable subjects ; words used in the singular number shall be held to include several persons or things, and words importing the masculine gender shall extend and be applied to females as well as males. Judicial Factor to find Caution for duly performing his Duties. § 2. And be it enacted. That every judicial factor shall, within such time after his appointment as the Court shall direct, find caution for his duly accounting for his intromissions and manage- ment, and observing and performing every duty incumbent upon him as factor, in terms of the rules prescribed, or to be prescribed, for the discharge of his office, and in case of his failure to do so his appointment shall fall ; and no factor shall enter upon the duties of his office, nor shall an extract of his appointment be issued un- til after such caution is found and received as sufficient ; and the factor shall extract his appointment without delay. b2 Mil AIM'1;N1iIX. — ACTS OF PAUMAMKN'T. Judicial Factor to lodijc icith the Accountant a distinct Rental oj Lands committed to his management, a List of Funds, and an Inventory of Moveables, dec. § 3. And be it enacted, That every judicial factor shall, as eoou as may be after extracting liis apjjointnient, and within six months at latest from the dato on which his bond of caution shall have been received, lodge with the accountant a distinct n-ntal of all lands committed to his management, specifying the rents, revenues, and profits of such lands, the existing leases, and other rights aflfecting the lands, and the public burdens and other burdens thereon, and a list of all monies iind funds belonging and debts due to the estate, specifying the particuLir&of each item, and the interest or revenue arising from the same, the document by which the same is vouched, and the nature and value of any security held for the same, and also an inventory of any household furniture, farm-stocking, goods, or moveables, including rights moveable, forming part of the es- tate ; and he shall, without delay after extracting his appointment, recover all writs and documents of importance belonging to the estate, and collect all monies due to the same not securely invested, and use all reasonable diligence in ascertaining the exact nature and amount of the estate jilaced under his charge; and he shall produce all such writs and documents, and information so obtained l»y him, along with the said rental, list of funds, aixl inventory to the accountant, which rental, list, and inveutor^', when adjusted and api»roved of by the accountant, shall Ix' signed by him and the factor, anr without further inquiry, report the matter to the Court, who if X Al'l-KNIUX. — ACT.S OF I'A IILIAMLNT. they consider it expedient and contiistLnt with due regard to the amount of tlie estate at the time, may sanction thi- measure, and the decision of the Court shall be final, and nut suhji-ct to appeal ; and if the estate l»e held under entail, it shall be lawful to the Court to authorize the factor to take proceedings for constituting as n charge against the future heirs of entail, or otherwise recovering, the money expended in making any imi)ruvinients upon the estate, under and in terms of an Act passed in the tenth year of the reign of His Majesty King George the Third (10 Geo. Ill, c. 51), intituled An Act to enrourage the improvement of Lands, Tenemeyifi^, and Here- ditaments in that part (/Great Britain called Scotland, held under settlements of strict entail, and under and in terms of an Act passed in the Session of Parliament holden in the eleventh and twelfth years of the reign of Her present Majesty (11 & 12 Vict., c. 36), intituled An Act for A mend nunt of the T.atv of Entail in Scotland; but nothing herein contained shall be held as conferring power on the Court to authorize the factor to build or enlarge a mansion-house upon the estate, or to charge the estate and future heirs of entail to a greater extent than one-half the amount with which the heir in possession, if iimler no incapacity to act, could have charged the estate under the said acts, or either of them ; and if any factor having charge of the estate of any lunatic or other person incapable of managing his own affairs shall deem it proper for the comfort or welfare of such person that fhe whole or a part of such estate should be sunk on annuity, ho shall report the matter to the accountant, who shall state his opinion fhcreon in writing, and such report and opinion shall be sul)mitted by the factor, with a note as aforesaid, to the Lord r)rdinary, who shall report the n)atter to the Court, and it shall be in the power of the Court to sanction the measure, and the decision of the Court shall be final, and not subject to appeal ; and in all other matters in which special powers are, according to the existing practice, in use to be granted by the Court, the Court shall havt! pcnvcr to grant the same in like niamier iiml form as is above [»rovided. Befon Sfii'iiil /'ninrs, ifr. ijruntrd, (Joint to order such intimation to he made as may he deemed jrropcr. § 8. And lie it enarfcd, That in all cases in which npplication shall be made to the Lord Ordinary or the Court by any factor, or other person having right to make the same, for special powers, or for tlie oxtra<»rdinary application of mnucy or funds or property be- longing to any estate, the Lord Ordiiuiry or Cmaining unsettled, and f»f his own pro- ceedings in reference to the same, an in hunk at latest before the first day of June one thousand eight hundred and fifty, jiffer which date the provisions of this act for consigning money shall apply to such factor in all respects ; and in all other respects the whole provisions of this act shall take effect from and after the passing thereof, in regard to factories constituted before the passing of this act, in so far as the same admit of application thereto. Provision as to past Factories informally settled or desperate. § 23. And be it enacted, in regard to all factories constituted be- fore the pa.ssing of this act, That any settlement made of any such factory, though informal, shall be held as a prima facie discharge to the factor, and the accountant shall not report the same as a sub- sisting factory, or reipiire further proceedings therein, but reserving the right of all parties interested in the estate to sliow cause to the accountant or the Court why such settlement should not be held as a discharge to the factor, in which case, if the cause shown shall be satisfactory to the accountant or the Court, the factory shall be held as subsisting, and be proceeded with ; and in any such factory in which, though there has been no settlement, it sliall appear thai no benefit is likely to be derived hy the parties interested in the es- tate from fartlier [)roceedings therein, and no iiarly interested shall make appearance and reritis/i Guarantee Association, or other jmblic company incorporated by Act of Parliament or Koyal Charter, carrying on guarantee business within Sculland, to be accept- ed and taken instead of bonds of caution by private individuals. Certified Copy of Letters of Tutory or Curatory to form the hasi^ of a Sitmmary Process. § 28. And be it enacted, That whenever the Director of Chancery shall issue letters of tutory or curatory, proceeding on any service or gift dated after the passing of this act, he shall transmit a certi- fied copy of such letters to the accountant, who, after making an entry thereof in his books, shall transmit the same to one of the princi})al clerks of Session in order of seniority and by rotation; and such certified copy, when so transmitted, shall be held as estab- lishing a summary process in regard to the estate to which such letters relate, before that Division of the Court to which such clerk shall belong, to the same effect as if the tutor or curator to whom such letters are issued had been api»oiuted judicial factor by the Court on a petition in ordinary form ; and such certified co]»y shall be held for the purjioses of this act as equivalent to such appointment. Tutors, dr., served before the passing of (his ^Ut nmy put (licmsches under its j)ruvisions. § 21). Anil be it enacted, That any person who before the pa.ssiug • tf this act shall have been served tutor of law to any pujiil, or ap- jiointed tutor-dative to any pnpil or insane person or idiot, or served curator to any insane person or idiot, siiall, with consent of his cau- tioner, have right at any time during the continuance of his office to place himself and his cautioner and the estate under the pro- visions of this act, by presenting to the Directorof Chancery a written statement of his desire to that effect, signed by himself and his cautioner, and duly attested, ancl the Director of Chancery shall retain such statement, and shall transmit a certified copy thereof, and of the letters of tutory or curatory is.siu'd to the applicant, to the accountant, who shall transmit the same to one of the princijtal clerks of Session in the manner aforesaid, and such cerlilii'd copies when riM'lI.S rUOTKCTION ACT, XIX SO transmitted shall Ijc held as establiahiiig a summary process in regard to the estate as aforesaid, and the whole provisions of this act shall thereafter be a})plica1)le to the said tutor or curator and his cautioner and the estate, in the same manner as if such tutor or cu- rator had been served or appointed after the passing of this act, and the tutor or curator and his cautioner shall be held as bound for due fulfilment of all the provisions of this act accordingly. Rental, List, and Inventory to he equivalent to Tutorial or Curatorial Inventory. § 30. And be it enacted, That the rental, list, and inventory, lodged with the accountant, in terms of this act, by any tutor or curator as aforesaid shall be held as equivalent to the tutorial or curatorial in- ventory directed to be given up by an act of the Scottish Parliament, passed in the year one thousand six hundred and seventy-two, in- tituled Act concerning Pupils and Minors, and their Tutors and Cu- rators ; and the report of any additional funds or property belonging to the pupil or insane person or idiot, in terms of this act, shall be held as equivalent to an eik to a tutorial or curatorial inventory in terms of the said recited act, which is hereby repealed in so far as may be necessary to give efi"ect to these enactments, but no farther. Resignation and Removal of Tutors aiid Curators. § 31. And be it enacted, That the Court shall have power, on cause shown, to remove or accept the resignation of any tutor or curator coming under the provisions of this act, and to appoint a factor loco tutoris or curator honis in his room. Remuneration and Responsibility of Factors and Curators not altered. § 32. And be it enacted. That nothing herein contained shall be held to confer on any such tutor or curator a right not now existing in law to remuneration for the discharge of the duties attached to his ofiBice, or to limit his powers, or alter the rules of his responsi- bility as by law now existing, excepting in so far as is herein ex- pressly provided. Power to Accountant to require information from Banks. § 33. And be it enacted. That the accountant shall have power to require the ofi&cers of any bank with which any factor or tutor or curator shall have opened an account for the estate under his care, to exhibit all entries in the books of such bank connected with such estate, and the officers of such bank are hereby required to exhibit the same accordingly, and to allow the accountant to take such copies thereof as he raaj' require. X.\ ArPKNIMX. — ACTS C»F I'AIU.I AMKNT. Dischanjc of Factors, Tutors, ami CKnitom. § 34. And be it enacteil, TImt it shall be competent lur niiy factor, tutor, or rurator, at tho ti-rniiiiation of his ofTioe, to present a peti- tion to tho Court for his ilischargi-, calling all persons interested in the estate, so far as known to him, as parties to such petition, and the Court shall order such intimation and service as they may think fit ; and it shall bo competent to any persons so called, or to any other persons showing right and interest, to appear as parties, and upon cause shown to open up tlie audit of the factor's accounts, and thereafter, and after receiving the report of the accountant, and mak- ing any further inquiry which may be necessary, the Court shall pronounce judgment thereon ; and such judgment, if it shall dis- charge such factor, tutor^ or curator, shall be linal and conclusive against all parties concerned, though pronounced in absence, pro- vided the same shall not be opened up as a decree in absence in the Court of Session within tho time limited for ajipealing to the House of Lords, or shall not be ap[)ealcd from within that time. Accountant to he Custodier of Bank Receipts. § 35. And be it enacted, That the accountant shall be the custo- dier of all liank deposit recei[»t.< and other vouchers for sums of money already placed or to bo hereafter jilaced in bank under authority of the Court, and of all judicial bonds of caution and other judicial bonds granted or to be granted under the authority of the Court, or any of the Judges thereof, or in reference to the business there- of, and all otlicr d(jcuinonts of a like nature, which, according to the present law or practice, are intrusted to tho keeping of the senior principal clerk of Session, who, after the commencement of this act, shall cease to discharge his present duty as custodier of such documents, and shall transfer all such documents as are in his possession to the accountant; and thereaftev the clerk in each pro- cess in which consignation is made shall lodge all such bank receipts and bonds or vouchers in the hands of the accountant, whose ac- knowledgment therefor shall be an acquittance to such clerk. Records in the Accountant's office to he open for Inspection. § 30. And be it enacted, That the whole records and papers relat- ing to factories, tutories, and curatories retained in tlie accountant's ofTice shall be ojM-n to inspection on jiayment of such fees as may be fixed by the Court; but shall remain in the office, and not be lent out unless under authority of the Court or of the Lord Ordinary, and rojiies therefrom, attested by the accountant, shall have the PUriLS PROTECTION ACT. XXI same authority as the originals themselves, and shall he furnished to any party requiring the same, on payment therefor of such fees as may be fixed by the Court ; and such fees for inspection and attested copies shall be paid weekly by the accountant into the fund hereinafter established. Banks to accumulate principal and interest on Accounts and Deposits. § 37. And be it enacted. That from and after the passing of this act, every bank in Scotland with which any money shall have been or shall be deposited or lodged by any judicial factor, tutor, or curator, or under authority of any Court in Scotland, or with reference to any suit in any Court in Scotland, whether on deposit receipt or on account current, or otherwise, shall once at least in every year accumulate the interest with the principal sum, so that both shall thereafter bear interest together as principal ; and any bank failing so to do shall be liable to account as if such money had been so accumulated. Provision for Accountant's illness or temporary absence. § 38. And be it enacted, That in case of the illness or temporary absence of the accountant, the Lord President of the Court of Session, or other judge acting as President for the time, may authorize d^xiy one of the accountant's clerks, or other qualified person, to discharge the duties of the accountant for the time. Establishment of Fee-Fund, § 39. And be it enacted, That for establishing the fee-fund here- inbefore mentioned, there shall be payable by each estate under charge of a judicial factor, and by each estate of a pupil to whom a tutor of law shall hereafter be served, and by the estate of every pupil, insane person, or idiot to whom a tutor-dative shall hereafter be appointed, and by the estate of every insane person or idiot to whom a curator shall hereafter be served as aforesaid, and by all other estates or parties whom the Court may deem to have benefit from the services of the accountant, such fees as shall from time to time be authorized by the Court, having due regard to the sums required for the purposes of this act, and to the interests of the estates to be benefited thereby ; and such fees shall be lodged by the accountant at least once in every week in that bank in Edin- hurgh which for the time shall be employed by G-overnment to tran- sact its business there ; and such fees, with any interest accruing thereon, shall form a fee-fund, out of which the accountant shall XXH Arri:NL)IX. — acts of rAIU.IAMKNT. draw nnd pay his own salary and the other salaries herein directed to be paid, and the whole expenses attending his office and duties ; and the accountant shall annually exhibit an account of his intro- missions with the said fee-fund to the Queen's and Lord Treasurer's Kemembrnnct^r of the Court of Kxelu'i|ner in Scotland, who is here- by rcipiired to exaniiiu' ami audit such account, and thereafter to submit the same to the Lord President of the Court of Session, with a view to the reconsideration by the Court of the fees then in use to be charged ; and such fees shall be so regulated, increased, or di- minished by the Court from year to year, or oftener, as to keep up the fee-fund to an amount sufficient for answering the charges thereon, and for providing such reserved fund as may be necessary to meet the current and contingent expenses of the establishment ; and any surplus arising on such fee-fund shall be paid over to the said Queen's and Lord Treasurer's Remembrancer, and reniain in his hands to meet the future charges in such fee-fund ; and the accountant shall enter into bond to Her Majesty with surety for his intromissions to the satisfaction of the said Queen's and Lord Trea- surer's Remembrancer, and to such amount, and either by a public company or private individual, as to him may seem proper. Power to pass Acts of Sederunt. § 40. And be it enacted. That it shall be competent to the Court of Session, and they are hereby authorized and lequired, from time to time, to pass such acts of sederunt as shall bo necessary or proper for the further regulation of the manner of appointing judi- cial factors, and the manner of discharging their duty, and the manner of discharging the duties of the accountant, and the manner of applying the provisions of this act to the case of tutors and cura- tors, and the forn)s of process to be used in pursuance of this act, and the manner of verifying by affidavit, declaration, certificate, or otherwise, the sufficiency of the cauti*jn olTcred for factors, tutors, and curators, and all other matters requisite for more effectually carrj'ing out the purposes of this act. Act may Ik amended, n lodging receipts for consigned money, . 2 6 Bf'.sides 1h. for each £100 of the amount, but the fee not to ex- ceed in all £2, 2h. Head 2d. — Fees fur Searches and delivering up or exhibiting Documents. For each search for a bonrl, rental, or other document, a fee of . . . .£050 APPENDIX. — ACTS OF SEDERUNT. XXXV For each search of the records of subsisting or of new- factories, or any information therein contained, £0 2 6 For exhibition or delivery of bank receipts, under warrant of the Court, &c. . . . . 2 6 And Is. for each £] 00 of m«ney uplifted, but not to exceed in all £2, 2s. Head Scl. — For Copies of Papers. 2s. 6d. for the first sheet, besides the ordinary copying fees, as specified in the Act of Sederunt 19th December 1835. Head 4dh. — For Audits. For auditing each account, a fee of . . £0 10 6 Besides not more than seven per cent, on the factor's commission as allowed ; or in case there is no factor's commission allowed, or less than full factor's commission, then not more than seven per cent, on what would have been the factor's commission, if chargeable and fully allowed. Head 5th. Report on applications for final discharge, . £0 10 6 And where the yearly revenue of the estate is above £500, then £1, Is. This to be exclusive of fees of audit. Head Qth. Report on application for special powers in ordinary cases, and other reports, . . . . .£0 10 6 In cases of importance, £1, Is., and in cases of importance and difficulty, £2, 2s. (Signed) D. BOYLE, I.P.D. 7. Act of Sederunt of lltli March 1851. See Note on page viii., supra. 8. Act of Sederunt for Eegulating the Procedure of Judi- cial Factors under the Statute 19 & 20 Vict., cap. 79. [25th November 1857.] The Lords of Council and Session, in pursuance of the powers vested in them by the 164th and 165th sections of the Act of XXXVl APPENDIX. ACTS OF SEDERUNT. Pailiainont passed in the 19th and 20th yt'"r of Her present Majesty's reign, cap. 7'J, intituled, "An Act to amend and con- solidate the Ittws relating to Itankruptcy in Scotland,'' do hereby enact and declare a.*; foUow.s: — § 1. That every })etition preKeni«d to the Court under § 164 of said statute, for the appointment of a judicial factor on the estates of persons deceased, shall be in the form, and as nearly as may be in the terms, set forth in the schedule No. I., hereto annexed. § 2. That every such petition shall ho i»rinted and boxed, according to the present practice, and sliall be also boxed for the accountant in bankruptcy. § 3. Besides intimation on the walls and minute-book in common form, of which certificates shall be produced, intimation shall be made in the EdinburLrh (razetle, according to the forms in schedule No. II., and a full copy of the petition shall be served on such of the persons named in the petition, as representatives of the deceased, as are not parties thereto ; and a copy of the Edinburgh Gazette, containing the intimation, and an execution or acknowledgment of service of the petition, sliall be produced before the petition is dis- posed of. § 4. The Court shall not make the appointment of the judicial factor until the lajjse of fourteen days, or such other time as the Court may fix, after both the publication of the notice in the Gazette and the date of service (when such service is recpiired) of the petition on the representatives of the deceased: Provided, however, that the Court, if in any case it shall see catise to do so, may make an interim appointment of su«'b factor at any earlier date. §5. The judicial factor, before extracting his appoint nient, and entering upon the administration of the estate, shall find caution to the satisfaction of the clerk of Court for his intromissions and the due j)erformaiire of the duties of bis office ; and on the bond of caution being executed, it shall be transmitted by the clerk to the process to the accountant in bankruptcy. § T). When not otherwise expressed in the interlocutor appointing the judicial factor, the time for finding caution shall be limited to three weeks from the date of appointment, the Court reserving power, on cause shown by application made at any time before the expiry of that period, to ])rorogate the time for finding caution ; and in case of failure to find caution within the time thus allowed, the apj)ointment shall ijmn fartu fall. § 7. On the death or insolvency of the cautioner of any factor, such factor, on the same coming to bis knowledge, shall forthwith APPBINDIX. ACTS OF SEDERUNT. XXXVli give notice in writing to the accountant in bankruptcy of bucIi death or insolvency, and the accountant shall, as soon as the fqct shall come to his knowledge by means of such notice or otherwise, require new caution to be found. § 8. The factor shall immediately, on extracting his appointment proceed to inquire into and ascertain the nature and extent of the estate belonging to the deceased, and shall be entitled to enter into immediate possession of the same, and of all writs and documents of importance belonging thereto ; and he shall make up such titles to the estate, heritable and moveable, as shall enable him to manage, dispose of, and realize the same in terms of the statute. § 9. In order to ascertain the claims upon the .estate the factor sliall, within eight days of extracting his appointment, cause to be inserted in the Edinburgh G-azette, a notice, in the form, or as nearly as may be, set forth in the schedule No. III. hereto annexed, and he shall also insert a similar notice in such newspapers as may appear to him to be proper. § 10. The factor shall examine the claims of the creditors, in order to ascertain whether the debts are justly due from the estate of the deceased, and may call for further evidence in support of the claims, and may, if he sees fit, require the creditors to constitute the same by decree in a competent court, in an action to which the factor shall be called as a defender. § 11. The factor shall, within six months at latest from the date on which his appointment shall have been extracted, lodge with the accountant a full inventory of the estate of the deceased, and shall produce therewith or exhibit all such writs and documents of importance belonging to the estate as may have been obtained by him, and sliall at the same time report a state of the debts appearing to be due by the deceased, distinguishing those for which claims have been lodged by creditors, and the evidence upon which the same rest, and the claims made and lodged with him by persons interested in the succession of the deceased, and the grounds thereof, and shall append thereto a vidimus of the estate of the deceased, estimating the probable value thereof when realized, and the amount of claims of creditors thereon, and of other persons interested in the succession ; and the said inventory when adjusted and signed as after mentioned, with the state of debts and vidimus of the estate, shall remain in the possession of the accountant ; and all creditors and persons interested in the succession of the de- ceased, or their agents, shall have access to see the same in the hands of the accountant, at his office. § 12. The accountant before adjusting, approving, and signing d XXXVlll APPENDIX. — ACTS OF SEDERUNT. the inventory of the estate lodged by the factor, shall examine into the same, and call for all necessary documents, to enable him to ascertain the circumstances of the estate and the sufficiency of the inventory, so that it niny form a clear rule of charge against the factor; and if at any time thereafter any new claims, or property belonging to the estate, shall be discovered, the factor shall report the same forthwith to the accountant, in order to such addition or alteration being made on the inventory as may thereby be rendered necessary. § 13. The inventory of the estate so lodged, when adjusted and approved of by the accountant, shall be signed by him and the factor, and shall form the charge against the factor ; and the ac- countant shall tlien fix witliiii what [leriod the factor shall prepare a state of funds and scheme of division, to be considered and ap- l)roved of by the Court, with power to the accountant to prorogate the time for preparing such state of funds and scheme of division as shall seem to him, having regard to the circumstances of the case, to be necessary or expedient. § 14. "When the factor desires special powere to be granted to him by the Court, he shall submit the proposal by note to the account- ant, who, after making such inquiries as may appear to him to be proper, shall report his opinion tliereon in writing, and that report shall be produced with the application to the Court. § 1.1. When the judicial factor shall have prepared the state of funds and .';iv( t.« meet 8Uch claims if ultimately eustained. or when the saiiif shall hefonie payable or prestable. § 21. The judicial factor shall loilgr all the money coming into his hands in some one of the hanks in Scotland, eptablished by Act of Parliament or Koyal Charter, in a separate account or on deposit, such account or deposit In-inj; in his own namr, as judicial factor on the estate ; and the factor shall not keep in his hands more than £50 of money belonging to the estate for more than ten days; and it shall be the tluty of the accountant to report to the Court any failure of the factor in this respect. § 22. Thi- factor shall bo entitled, out of the lirsl of the funds real- ized by him, and without waiting for the expiry of six months from the death of the deceased, to pay the deathbed and funeral ex- penses of the deceased, rent, taxes, and such servants' wages as are privileged debts, and interest becoming ilue. or past due, to credi- tors having ]»reference over the estate. § 23. When the inventory of the estates of the deceased shall be lodged by the factor with the accountant, a term shall be fixed by the accountant for the factor lodging his first account of charg<* and discharge of his intromissions with the estate, together with an account-current, showing the state of the money in his hands from day to day. in order to the same being examineetition to the Court of Session, Division, Mr , clerk, for his discharge of the office of judicial factor, of which notice is hereby given, and that the petition will be again moved in Court on or after the day of [Date.] [Signature and address of judicial factor.] III. (CIRCULAR ISSUED BY THE ACCOUNTANT.GENERAI. 1(1 OFFICERS rSKKR T[IK [i'l'II.S I'ROTECTION ACT, 1;' >v i:j VKT,, c. 51. Factory, No Notice. Tlio annual date for closing the factor's account, and exhibiting the }>osition of tlie entafe (or reporting tlic facts if fliere lias been no estate or intromissions), is the , and by section llfli of the act, the account requires to be lodged with the accountont within one month from that date. (1.) This intimation is not reqtiired by the act, but it is senl liy the accountant to prevent factors from incurring penalties Ibnmgh oversight or noglcet. (2.) On allCOmmUnieiitii.ii> r.hpe«tiiir; llij.^ fiiclmx , plriise lo qnot.- APPENDIX. — accountant-general's CIRCULAR. xlv the above reference number and (to secure the safe transmission of documents) give an exact address. Accountant's Chambers, General Register House, Edinburgh, 1859. Form or Account of Charge and Discharge. Note. In order to afford some assistance to those factors, who have not Ijeon accustomed to the preparation of branched accounts of charge and discharge, the following form has been prepared. It is purposely of the most simple character, and the entries are briefly narrated, but it sufficiently illustrates the principle on which such an account should be prepared. Above all other things, the factor must not mix any of the branches of income and expenditure, such, for example, as interest with capital, or maintenance of lunatics with repairs of property, &c. &c. No. 1165. Account of Charge and Discharge of the Intromissions of as Curator Bonis to , presently an inmate of Asylum. — From 31st March 1856 to 31st March 1857. The Cautioner is residing at I. Charge. 1 . Funds as taken Credit for at close of last account, — (1.) Heritable bond hy A. B. over lands of , £1000 (2.) Balance in Eoyal Bank, . . . 1115 10 6 (3.) Balance in factor's hands, ... 25 Sum, £2140 10 6 2, Rents,— (1 .) Arrears of rents as taken credit for at close of last account, . . £15 10 (2.) Current rents, as per rental in appendix to this account, . 74 10 6 90 6 Note. The rental must contain (1.) the arrears at end of previous year; (2.) the current year's rent; (3.) the rents and arrears collected ; and (4.) the arrears out- standing at the termination of the year. Carry forward, £2230 11 xlvi MM-KNDIX. — ACCOUNT ANT-OENEllAl/s CIRCULAR. I (iiMKiK — continued. Brought forward. £2'230 II M. Interests, — (1.) Boii.l p.r XMOOO grnntod hy A. B. 1850. ^lay 1 •'). Interest at ^ per cent., for liall- yi-ar. to this date, £25 d (i .. N'uv. 11. bo. do. do. 2") o £50 (I (2.) Bond per £500 granted hy C. D. Nov. 1 1 . Interest for half-year, to this date, at 4 per cent., . . 10 n (3.) Bank account. ,, ,. Interest added hybank to bank account to 31st Dec. 185G, . 34 17 6 Sum, 'M I 4. Annuity, — 1856. July 15. Rocoived half-year's annuity due at til is date, . £25 (> ., Jan. 15. I)... .1.). do. 25 5. Capital realized, — 1856. Nov. 11, I)r,i\vii from hank, £500 10 H NoTK. As the liK.tor debits himself with the whole estate at the comnioncc-njent of the account, and takes credit, at the termi- nation of the discharge, for the estate as then subsisting, any realization of capital, such as the above, though noticed in tlic account, does not, of course, full to lie carried into the money column. This £50(> will be found taken credit for as invested under Branch 7. of discharge, item 2d. 50 Sum of Ctuirgo, £2.''75 8 6 APPENDIX. — accountant-general's ciroulak. xlvii II. Dl.SOnARGK. 1 . Burdens and repairs, — (1.) Burdens, — 1856. May 25. Police assessment on property in , ,, ,, 31. Fire insurance on do., ,, June 19. Poor's assessment on do., „ ,, „ Property-tax on do., (2.) Repairs, — 1856. July 25. Paid James Brown for mason work, per estimate, £5 7 6 5. „ Oct. 19. Paid Henry Smith for papering house, . 3 19 e. 9 6 6 Voucher Number. 1. £2 7 6 2. 1 9 3. 2 10 4. 1 5 £7 11 6 Sum, £16 18 2. Maintenance of ward, — 1856. April 15. Quarter's board in Asylum to this date, £15 7. „ July 15. Do. do. do. do., 15 s. „ Oct. 15. Do. do. do. do., 15 9. „ Jan. 15. Do. do. do. do., 15 lo. £60 „ „ Clothes, &c., fur- nished ward during year, . . 12 14 n. 72 14 3. Law expenses, — 1856. Dec. 31. Paid his account for the appointment of Curator Bonis in the present case, . 12. 20 13 6 Note. Business accounts should be paid, subject to taxation by the auditor of Court, if called for. 4. Commission, — Commission allowed by accountant of Court at last audit, . . . . . 1.3. 5 5 Carry forward, £115 10 6 xlviii AiTKNinx. — accountant-general's circular. II I MscilAiuiK — continued. Brought forward. £\\^ !<» •'• 5. Miscellaneous,— Vum'C IS*)!). Jan. lo. I'uid fravtlliiiir expenses with ward to Asylum, iL\ '.\ (• m Aj>ril 18. Paid aecountaiit's fees of audit of last account, lo (.; v,. 6. Capital invested, — 18/5ri. Nuv. 11. Loan to ('. 1>., over lands of £oOO 1(1 f, I'aid into hank dur- ing year, . I.Ki !<• G See note, branch o. of charge. 7. Fund as at close of this account on "M st March 1857, — (1.) HeritaMe bond by ^1. H. over lands of , 4;l(>i)(i (I (2.) Heritable bond by C. I>. r.ver lands of ., . 500 10 (> (3,) Balance in Royal Bank, includ- inginterestto :Ust Dec. 1856, 745 l<> I i;i ♦.; £22511 14 <; (5.) Arrears of rent outstanding as per nntal, 7 K^ *• Sum, 2258 4 »", Sum of hisoharge, 4^2375 8 '"• Notes. I . Hody r.f the Account and its Appendices. ( I .) Charge side of an account. The most ron( lusive f»)rni is for the factor to commence by chargiDg himself, as above, with the whole estat*- ; that is — 1. APPENDIX. — accountant-general's circut>ar. xlix Whole funds, arrears, balances, and whatever belonged to the estate at the closing date of the preceding account or inventory. 2. Revenue of whatever description that has become payable within the period embraced by the account, narrating distinctly, in each entry, the data requisite to check its accuracy ; such as dates, periods, and rates of interest, or dividends, stock amounts, &c. The elements that come under these two branches must never in any measure be mixed. The second branch to be further sub- divided into rents, interests, annuities, capital realized, &c. &c. (2.) Discharge side of an account, branched as folloAvs: — Public bur- dens, repairs, interest of debt, payments on account of the ward ; investments made, debt paid off", improvements, expenses of man- agement ; and, lastly, funds, balances and arrears outstanding, or actual amount and particulars of the estate, as on the date on which this account closes. In most estates this variety will not occur ; but what the factor has to keep in view is. that, where more than one class occurs, they must not be mixed. 2. Commission. If none is desired, say so at the end of the account. If desired, in the same way mention the amount deemed due, and how arrived at ; but do not include it in the account, or take credit for it. The amount fixed by the accountant will come into the next annual account. 3. Dates. (1.) The annual closing date must be rigidly ad- hered to, unless in the event of the death of the factor or ward, or of a pupil reaching minority, when the account must be closed and balanced, and the exact amount of the estate ascertained, as at that date. If the pupil reaching minority be one of several, the ac- counts must be also balanced at the subsequent annual closing- date. (2.) In all accounts, whenever the nature of entries admits of it, the dates must be given. (3.) No fictitious dates of any kind, nor any intromission of a date subsequent to the closing date of the accounts, can, for whatever purpose, be admitted. 4. Account and Vouchers. The vouchers will be returned afterthe audit is completed. (1.) Tliey must be properly arranged, backed and numbered, and referred to by the number in the account. (2.) Must refer to the factorial estate, as distinct from the factor's private affairs, and be accompanied by any detailed accounts of which they form the discharge. (3.) The entry in the account must express the transaction in simple accordance with fact, and with the vouchers, and fully. (4.) Particular attention is called to the necessity of stating in the account the name and address of the party with whom the pupil or lunatic is boarded. (5.) States un- signed, or a bank account uncertified cannot be taken as evidence. 1 APPENDIX. — accountant-general's CIRCULAR. (6.) No separate inventory of vouchers is requisite. (7.) Payments unavoncheil. or witliout the proper stamp, must l»o (lisaUowed. 5. Investments. The accountant is roipiired hy the net to "con- sider the investments." Besides production of tlie evidence of an investment, therefore, factors shoukl, in the narrative of such an entr\', briefly describe the security, its nature, position, and con- ditions, t'ithor in tlie account or separate vidimus, and produce the vahiations on wliich the mojicy lias been advanced. The Court will not approve of debenture investments, and much less of invest- ments in shares, personal bonds, or bills, or even of the continuance of sucli investments, or of the continuance of the funds in trade or business. 6. Signatures. Ac(?buuts must be signed by the factor, and also the states or accounts of sub-factors, also all separate explana- tions, statements of facts, itc, though these latter will very rarely be requisite, if accounts are properly stated. 7. Vidimus. Each annual account must either contain, as in the example furnished, or be followed, as an appendix, by a vidimus. In either case, the vidimus must embrace the entire estate, that is, all funds and balances as subsisting on the exact date of closing the account. 8. Interest. (1.) Progressive interest states to be furnished, as an appendix, when interest is either charged or allowed on the account. (2.) liank interest will only be allowed a factor, if he had at his command an avnilalije fai-torial fund. (3.) The rate of interest, and the jK-riod to which it apidirs and comes down, must always be stated. (4.) Interest not yet due as on a bank or other account-current is not necessarily, and in general should not be, brought down to the dosing date of the factor's account. It is enough to state the date from which it is resting, or has yet to be accounted for. Factors will be charged at the rate of twenty per cent., penal interest, on a balance in their hands exceeding £50. 9. Account-Current or ('ash Account. Unless there is a pro- gressive interest state, an accoinit-currcnt, or transcript with the dates from the factor's cash-book, is requisite. This must balance with the factor's arrount of charge and discharge. 10. Rentals. A rental should never be omitted from the appen- dix. In ordinary rases, the columns requisite arc — (1.) Names of possessions. (2.) Names of tenants. (3.) Arrears taken without any alteration from last rental. (4.) Rents since become due. (5.) Amounts paid. (0.) Arrears, exact as on the date on which the account closes. Each subject in the rental must be accounted forannunlly. Any snliject, therefore, that has been unoccupied or APPENDIX. accountant-general's CIRCULAR. H taken possession of by a creditor, must be so explained. The amounts of columns No. 3 and No. 4 of the rental are carried to the factor's account, charge side, branch 1 and 2 respectively. Where the rental differs from that of the preceding year, the cause of dif- ference should be shown by a note at the bottom of the new rental. 11. Backing Accounts. The back of the account should bear — (1.) The name of the factor and ward. (2.) The exact period em- braced by the account. (3.) At the bottom, the number of the appointment. The factor or agent (if the account be attended to by an agent) is requested, in all cases, to give his precise address, in order to secure the safe transmission of documents. 12. New claims arising, or property discovered to belong to the estate after the inventory has been lodged, should be specially explained and reported in the annual account next following the discovery, and taken into the vidimus. 13. The death (mth evidence of it) of a factor or ward, or death or insolvency of a cautioner, to be intimated. 14. Opinions. The accountant cannot take the responsibility of giving opinions for the guidance of factors, unless in the course of his duty, in the audit of a factor's account, or to the Court in ap- plications by factors for special powers. In the latter case, the factor proceeds in the form of a report to the accountant, he states the circumstances, and his own views (as in a petition to the Court), and concludes (as in the prayer of a petition) by stating briefly the exact powers he wishes the Court to grant to him. The account- ant's opinion will follow thereon. The factor should then bring his report, with the accountant's opinion, by a note before the junior Lord Ordinary. 15. Lodging the Account. The annual account, with its appen- dices, or all that has to be retained when lodged at the accountant's ofl&ce, should be stitched together as one paper, and be adequate clearly to inform any one having occasion to examine it without the vouchers, when neither the factor nor the accountant can be present to explain. 16. Audit. When lodged, the account will be audited without delay, and a draft report issued, and this the factor should, without delay, revise and return ; and in any event within twenty days. 17. Notes by the Accountant. When the accountant issues Notes, the factor's additional productions or answers, or explan- ations should be signed, and should be of the size and shape of his accounts, in order to be affixed to them for preservation. But such separate papers ought not to be requisite. They never can compensate for the neglect to lodge at first accounts in themselves In AIM'KNDIX. — FOKMS. ronclusivt'. The unnecessary expense, then or tliereafter, so createJ, will tall upon the factor, and not upon the estate. 18. Ft't's of Audit.. "When tlif draft report has been returned to the arc'ountant, and theaudit is completcil, the amount due to the fee-fund will immediately he intimated to the factor, and, when paid (unless in special circumstances), the whole vouchers forthwith returned. Further communications with the accountant should nut be ordinarily ro(juisitc until the occurrence of the audit of the year following. TV. FORMS. First, APPLICATIONS FOR APPOINTMENT. 1. Petition for a. Factor under the Companies Clauses Con- solidation (Scotland) Act, 1845. Unto the Right Honourable the Lords of Council and Session, tlie petition of A. B., residing at D., a mortgagee of the K. and //. Railway Company. Humbly Sheweth,— That by the Act 1 Geo. IV., c. 10, the said company was incoq»orated for the purpo.«e of making a railway in the county of M., called the K. and L. Railway, and for that pur- pose to raise sums of money by mortgage. My various subsc(|ucnt acts (M Geo. IV., c. 5 ; lU and 11 Vict., c. 1340), the said company was authorized to raise additional suras of money and execute addi- tional works. In virtue of these acts the said K. and L. Railway was made and open('(l to the pul)lic, and has continued to be tised for tlic purposes of public traftic by the said K. and L. Railway Company. By the said Act, 1 Geo. IV., c. 10, it was enacted, § 37 [Here quote at length the (dauses in reference to the borrowing powers of the company, and the remedies of mortgagees]. By the ('on)i)anies Clauses Consolidation (Scotland) Act, 1845, it is enacted, § oO [Here (piote it at length as on p. v., sujirn']. By § nith (»f the last mentioned act, it is enacted [Here quote it at length, as on ]•. v., «»/;>n/]. The petitioner lent to the saiil K. and L. Conqtany the sum of £.5000 sterling, and a mortgage, dated the 31st Febniary 180/J, was granted by them to him therefor, and is herewith produced. The ArPLICATIOXS FOR APPOINTMENT. llll interest thereon was declared to be payable half-yearly, at two terms in the year, Martinmas and Whitsunday, in equal portions : And the interest thereon, due and payable by the petitioners, was regularly paid up to the term of Whitsunday last 1825, At the said term of Whitsunday 1 825, the half-year's interest on the said mortgage first began to run into arrear, and since that time no interest has been paid thereon. There is an arrear of interest resting owing and indebted to the petitioner by the said K. and L. Company, as at the day of last, of £ sterling. The petitioner, of this date ( ), by letter herewith produced, demanded payment of the interest which has accrued upon the said mortgage, and receipt of the demand thus made was acknowledged, of this date ( ), by the secretary of the said K. and L. Railway Company. His letter is also herewith produced. It is proper to add that the said company have, by an illegal working agreement with the M. and N. Company, not only arranged that the latter company should draw the whole tolls arising on the said K. and L. Eailway, but that they should have them trans- mitted weekly to England, and thereby it is attempted to place the funds of the said K. and L. Eailway Company beyond the juris- diction of your Lordships and the Courts of Scotland. In these circumstances the present application for the appoint- ment of a judicial factor has become necessary. The petitioner takes the liberty of suggesting Mr 0. P. Q., residing in B., the manager of the said K. and L. Eailway previous to the agreement between the K. and L. Company and the 31. and N. Company above mentioned, as a person well qualified for the office. May it therefore please your Lordships to appoint this petition to be intimated in the minute-book and on the walls, in com- mon form, and to be served on the said E. and L. Eailway Company, and to ordain them to lodge answers thereto, if they any have, ^\dthin eight days ; and thereafter, on resuming con- sideration hereof, with or without answers, to nominate and appoint the said 0. P. Q., or such other person as your Lord- ships may think proper, to be judicial factor on the said K. and L. Eailway and works connected therewith, with power to uplift, collect, and receive all the tolls and revenues of the said railway and works, and all sums of money arising and due to the said K. and L. Eailway Company, by virtue of the said acts relating to the said K. and L. Eailway, or such part thereof as may be competent to, and necessary for the full e liv Ai'rr.NDix. — forms. payment of the sniJ amount of interest iliu' to the petitioner, topjethor with nil i^osts, inohulincj the olmrgos of recoverinj; the tolls nml sums nforesftid, and to apl'ly the tolls and i^unis which may ho collected and received as aforesaid to the use of the petitioner, hy making payment to him of the interest due to him as aforesaid, and also of all costs, including the charges of recovering the tolls and sums aforesaid, with all the other j)0wers and under all the conditions and obligations contained in the Acts of Parliament of and concerning the said K. and L. Railway, and in the said Companies Clauses Consolidation Act ; or otherwise, to nominate and appatrinional interests as fall under the manage- ment of the oflice-bearers of the burgh ; — with power to aj)- point a treasurer, on his finding caution for his intromissions in common form, — and generally with i)Ower to exercise the whole functions of the Magistracy and Town-Council of the said burgh ; and further, to authorize and empower the said managers to examine the accounts of the management of the petitioner and the said D. K., and on the same being found correct, and the balance due thereon paid over, to exoner and discharge the petitioner and the representatives of the said D. K. of the whole intromissions and management had by them APPLICATIONS FOR APPOINTMENT. Ivii with the funds of the said burgh ; or otherwise, to order the petitioner and the said J. K. to lodge accounts of the manage- ment of the petitioner and the said D. K., to remit them when lodged to an accountant to examine and audit the same and report, and upon a report from him to approve thereof, and to fix the balance thereon : And, in' the event of a balance being found due by the petitioner and the said D. K., to decern and ordain the petitioner and the said J. K. to make payment there- of, conjunctly and severally, to the managers to be herein appointed ; or in the event of a balance being due to the petitioner and the said D. K.^ to authorize the managers to be herein appointed to pay the amount thereof out of the funds of the burgh ; and further, upon payment of such balance - by the petitioner and the said J. K., as may be found due by them, or otherwise forthwith, to exoner and discharge them and the estate and representatives of the deceased D. K., of their management of the said burgh, and of the whole actings and intromissions had by them under the same ; and lastly, to find that the expenses incurred in presenting this application, and in the procedure to follow hereon, shall form a good and lawful charge against the funds of the said burgh, and to authorize the managers to be appointed to pay and take credit for the same accordingly in their accounts ; or otherwise to find the party or parties appearing and opposing the prayer hereof liable in the same ; and to decern ; or to do further in the pre- mises as to your Lordships shall seem proper. According to Justice, &c. (Signed by Counsel.) 4. Petition for the appoiiitment of a Factor on a Trust-Estate. Unto the Eight Honourable the Lords of Council and Session, the Petition of Mrs /. 0. or i>., residing at D., widow of the deceased C. D., of the Customs, G., and A. S. 0., of the Inland Revenue, R., beneficiaries under the trust-disposition and settle- ment of the deceased J. 0., sometime merchant, afterwards re- siding in G. ; Humbly Sheweth, — That the deceased J. O., sometime merchant, afterwards residing in (?., by his trust-disposition and settlement Iviii APPENDIX. — FOKMS.. dated 5tb July 1823, aud recorded in books of Council und Session, 2d December J 850, gave, granted, assigned, and disponed, to and in favour of H. Ji., teacber in D., J. T., writer in G., W. T„ wrigbt and builder in //., A. G., of tbe J'. G. "Works, antl J. Ji. G., writer in G., and to tbe survivors or survivor of tbem wbo sbould accept, but tbat always in trust, forthe ends, uses, and purposes tberein after- mentioned. All and Wbole, a certain piece of ground in J. Street, G. and tbe buildings and otbers erected tbereon, tberein particularly described and disponed ; and all otber lands and estate, beritable and moveable, of every description, tben belonging, or tbat sbould belong, to bim at tbe time of bis deatb. Tbe purposes of tbe said trust Were, 1st, Tbe payment of all tbe truster's just and lawful debts, sick-bed, and funeral expenses ; 2cl, To allow to Mrs I. M., bis spouse, in tbe event of ber surviving bim, tbe free liferent use, enjoyment, and possession of tbe wbole bouse- hold furniture, plenisbing, and bed and table linen ; and also for pay- ment to her of tbe free annual produce of tbe wbole rest and re- mainder of bis means aud estate, beritable and moveable, tbere by con- veyed, but for ber liferent use allenarly, so long as sbo sbould con- tinue a widow after bis death. 3cZ, On the deatb or marriage of his said spouse, in the event of her surviving bim, or upon bis onnti death in case of his survivancc, the truster directed bis trustees to divide aud make jjayment of bis whole beritable and moveable estate thereby conveyed, equally, share and share alike, to and among J.O., N. 0.,1. 0. (the petitioner), J. 0., G. A. 0., A.S. (also petitioner), M. A. 0., and J?. D. 0., his children : the shares to be payable to his said children, if sons, on their attaining majority, and if daugh- ters, on their attaining majority, or being lawfully married. But it was declared, that in the event of any of his said children dying before their shares became payable to tbem, leaving lawful issue, such issue sbould come in place of bis or ber deceased parent — and in tlie event of any of them dying before receiving their said shares without leaving lawful issue, then tbe share of such deceaser sbould belong to, and be equally divided among, the survivors, share and share alike. By the said trust-disposition and settlement, full })ower8 were given to the tntPtecs to sell all or any f»f the subjects conveyed to thera, so far a.s might be necessary for carrying out the purposes of the trust, by public roup or private bargain ; and also to grant tbe usual and necessary dispositions and otber deeds; but no power of assuming additional trusfees was conferred on them. The other clauses of the deed are — an obligation to infeft the tnistees in the heritable property, — appointment of them as execu- APPLICATIONS FOR APPOINTMENT. Hx tors, and also as tutors and curators to the trustee's children (the majority accepting and surviving being a quorum), — limitation of their responsibility in regard to omissions, &c., — reservation of life- rent of truster, — with power to alter and revoke, and other usual clauses. The said J. 0., the truster, died on or about the 12th November 1833, survived by his widow, and leaving the eight children above named. Of these «/., «/., and N. have since died, without leaving any issue. 31., who was married to D. H., collector of excise, 0., is also dead, leaving an only daughter, I. M. H. (who is still a minor), and resides with the petitioner, Mrs J. 0. or D. G. A. 0. sailed for America on 16th November 1801, and is believed to be dead, nothing having been heard of him since that time. R. O. is now a farmer atZ)., Canada West ; and E. D. 0. married W. P., farmer in Upper Canada, and is still alive. The trustees named in the trust-disposition accepted of the trust and intromitted with the trust means and estate, the liferent of which was duly paid as directed to Mrs 0., till her death in 1855, and since then certain partial payments have been made to some of the family. The whole of the trustees have, however, died without the trust pro- perty having been distributed among the family, as directed by the trust-deed, and the heritable property remains unsold. The last sur- vivor of the trustees was the said J. T., who died on the day of July last 1858, and the trust consequently has thereby lapsed. The trust estate, in so far as not already disposed of, consists, so far as the petitioners have been able to learn, of a piece of ground and houses thereon, situated on the west side of J. Street, G., and a balance of cash, which was in the hands of Mr T. the surviving trustee at the time of his death. The property, though old, is of considerable value ; but there is a bond over it for £1000. The petitioners are the only beneficiaries under the said trust in this country, excepting the foresaid /. M. H., as in right of her de- ceased mother, 31. A. 0. or H., and she is minor, about thirteen years of age, and resides at D. with the petitioner, Mrs J. 0. or D. Her father, D. H., is alive, but resides in England. The other bene- ficiaries are B. 0. and Mrs E. D. 0. or P., both in Canada, and the said G. A. 0. in America, or elsewhere furth of Scotland. In these circumstances, and with a view to the due preservation management, and disposal of the said trust estate, the petitioners are under the necessity of applying to your Lordships to appoint a judicial factor thereon, in respect of the failure of the whole trustees nominated by the truster. The petitioners beg humbly to suggest to your Lordships Mr J. C, Ix APPENDIX. — FORMS. housp-agent, (?., as a fit and proper person to be appointed judicial factor on tlio said estate. He has had for the last few years the manaponiout of the heritable prupLTty of the trust, and collected the rents thereof, for which he has accounted regularly. May it therefore i>lease your TiOrdshii)S to onli^r intimation of this petition to be nuule on the walls and in the minute-book, in common form ; ami to grant warrant for porving the same upon the said R. 0., E. D. O. or P. and the said W. P., her husband, for his interest, and the said G. A. 0., and also upon the said /. M. II. and the said D. II., her father, for his interest as her administrator-in-law, and appointing them to lodge answers within eight days after service, if so advised ; and thereafter, upon resuming consideration of this petition, with or without answers, to appoint the said J. C, or such other person as your Lordships may think proper, to be judicial factor upon the trust estate of the said deceased J. 0., with the usual powers, he al- ways finding caution before extract ; and to decern ad interim; or to do otherwise as to your Lordships shall seem proper. According to Justice, &c. (Signed by Counsel.) Note. — Wlicro tlio trustees aro sought to be removed pro tempore or altogether, a prayer for sequestration of the estate in their persons must be introduced before asking the appointment of a factor. See Chapter I., p. 2 el $eq. 5. Petition fur the appoiutmciit of a Factor on an Intestate Estate. Unto the llight Honourable the Lords of Council and Session, the Petition of /'. S.. ^\'ri(L•^ to tlie Signet ; Humbly Shf weth, — That the petitioner was agent of the late Miss S. ir., re.siding in S. Street, £"., who died on the 4th day of June 1853, leaving property both heritable and moveable, liosides ft sum of about L.oO in money, and her hotisebold furniture, which, exclusive of some silver pbite, etc., has been vnlvird at abotit L.82, she died possessed of property to the amount of about L.3r»00, in- cluding a sum of L.25O0 which was invested on a heritable security as after mentioned. At the time of the said S. W.'a death, there was great uneortainty APPLICATIONS FOR APPOINTMENT. Ixi as to the party wlio was the nearest connection of the deceased; and although the petitioner was, along with R. A., writer, D., J. K. writer, G., and G. 31., W.S., presently abroad, a trustee under the deed of settlement of the late Mr D. W., writer, F., the only brother of the said S. W., he had no knowledge of the existence of any parties connected with her. On inquiry, however, it was ascertained that the family of ^. B. of G. was related to Miss W., and with the view of providing for the interests of all parties, the said A. B., on the suggestion of the petitioner, presented a petition, of this date (June 15, 1853), to the sheriff of E., for warrant to the sheriff-clerk to open the reposi- tories, and to inventory and to take charge of whatever property and effects and papers might be found within the said house in S. Street. Warrant was granted, in terms of the prayer of the peti- tion, to the sheriff-clerk of E., who opened the repositories, and inventoried and took charge of the property, effects, and papers of the deceased. No writings of a testamentary nature, and no writings of any kind, tending to throw light on the connections of the deceased, were found by the sheriff-clerk among the said *S'. WJs papers. The petitioner, of this date (July 21, 1853), lodged a minute in the said Sheriff-court process, craving warrant to shut up the deceased's house, and to fix the rate of the board wages to be paid to her servants. Warrant was granted as craved, and the house was shut up accordingly — the silver plate and other valuable pro- perty of the deceased being removed for security to the office of the sheriff-clerk. On the motion of the sheriff-clerk in the said petition, the sheriff of E., of this date (August 31, 1853), granted warrant for the removal of the said silver plate and other valuable property of the deceased to the E. Bank for greater safety. The said S. W. enjoyed the liferent of the said house in S. Street in virtue of the deed of settlement of the said D. W., her brother ; and the fee of the house was destined upon her death to the Keverend G. S. W., minister of D. In order that the house might be ready for Mr W.'s entry at the teiTQ of Martinmas 1853, it was necessary to remove the furni- ture of the said S. W. therefrom, and the petitioner lodged a minute, of this date (September 1, 1853), craving authority to the sheriff- clerk to do so. The sheriff granted warrant accordingly, and the furniture was removed to the warerooms of Messrs Z>. and L., G. Street, E. Sometime before the said *S^. W.'s death, intimation was given Ixii ArrKN'Dix. — forms. that the foresaid sum of L.2500, due to her under a bond and dis- position in security by P. Q. of Z., in her favour, was to be paid up at Martinmas lSo3 ; but as there was no party tn titulo to dis- charge tlie bund, that sum, togetht-r with L.4'J, its. i'A. of interest thereon, was consigned in tlie branch of the N. l?ank at D., on deposit receipts in name of Mr P., of Mr A ., the agent of Mr P., and of the petitioner. As yet there exists very great uncertainty in regard to the parties who are entitk-d to succeed to tlie property of the saicludes him from adoitting the com- mon mode, pointed out by law, of choosing curators before the Judge Ordinary. It is hence necessary to make the present application to your Lordships for the ajtiiointment of a curator bonis to the petitioner, the said A. B., and the petitioners would suggest for that oflice Mr O. B. &'., S.S.C., who has acted as the professional adviser of the other petitioner the said E. T. May it therefore please your Lordships to apj)oint this petition to be intimated on the walls and in the minute-book, in com- mon form, and to be served on the said E. B., and to ordain him to lodge answers thereto, if he any lias, wiiliiu eight days; and upon resuming consideration henof, with or without answers, to appoint the said G. B. S., or such other person as your Lonbships may think proper, to be curator hotits to the said A. B., with the usual powers, he finding caution before extract ; and to decern ad interim ; or to do otherwise as to your Lordships may seem proper. According to Justicp, fee. (Signed by Counsel.) APPLICATIONS FOR APPOINTMEXT. 1x1 X 10. Petition for the appointment of a Factor loco tutoris and of a Curator bonis to Minors of the same family. Unto the Eight Honourable the Lords of Council and Session, the Petition of P. F. G. and E. G., both residing at No. 116 B. Street, E., with their mother, Mrs M. D. or G., relict of the late P. F. G., sometime manager of the E. and L. Gas Com- pany, father of the said P. F. G. and E. G., the said Mrs 31. D. or (t., and P. F., officer in the employment of the E. Police Commissioners ; Humbly Sheweth, — That the said P. F. G. died on the 1st day of March 1858, survived by the two petitioners, his children, as afore- said. The petitioner P. F. G. is now above pupilarity, being six- teen years old, but the other petitioner E. G. is still in pupilarity. Their late father died without having made any appointment of tutors or curators to the petitioners, and without having executed any will or settlement of his affairs. The means and estate, of which the petitioners' father died possessed, have thus been left without any protection other than that afforded by the petitioners, or one or other of them taking up his succession in their characters of heir and executor. But in order to their adopting the necessary steps for the management and protection of the property, and for ascertaining the respon- sibilities which they woiild undertake by representing their father, it is requisite that a curator honis be appointed to the petitioner P. F. G., and a factor loco tutoris to the other petitioner E. G. The means and estate of which the petitioners' father died pos- sessed are considerable, and consist both of heritage and move- ables. He was proprietor of a shop and bakehouse, situate in /. Street, E., rented at about £45 per annum, the liferent of which was secured to him and to Mrs 31. G. or D., the petitioner, and the survivor of them ; and the petitioners, the said P. F. G. and E. G., are, it is understood, the fiars of these subjects under the title-deeds thereof. The petitioners' father was also, it is under- stood, proprietor of a ground -annual, payable furth of and from the said property, of the value of about £12, and to this the peti- tioner, the said P. F. G., as heir-at-law has now right. Besides the said heritable subjects, the said deceased P. F. G. died possessed of the following sums, viz. : — (1.) The sum of £140, deposited with the British Linen Company, E., on their deposit- receipt, dated 14th January 1858; (2.) The sum of £200, depo- sited with the Commercial Bank. E., on their deposit-receipt, / ' l.\X Al'l'ENl>IX. — KOltMS. ilated 27th January 1858; and, (3.) Tlu" sum of i:l40, deposited with tho Cpen, a proportional part, share and share alike, of his free estate. The whole of the trust-property has been sold and disposed of, with the exception of the following subjects, viz. : — 1st, The shop, dwelling-house, and j)crtinents, being No. 112 S. Street, E., at present let to W. A., baker, at the yearly rent of . . . i.'48 2fi, Tlie shop, being No. 220 L. Street, E., at present let to J. E., watchmaker, at the yearly rent of . 52 10 Sd, The house, being No. 11 P., E., at present let to J. W., at the yearly rent of . . 10 £110 10 The trust-estate which has, under the directions of the said deed, been realized amounts to about £5000, whereof £4000 is invested in debentures of the Caledonian Eailway Company, at 5 per cent. There is an heritable bond of £400 affecting the said shop No. 220 L. Street ; and there is also a balance due to the late Mr T. /?., W.S., who was the last surviving trustee, on the Rccounts-of his intromissions with the trust-estate. Although both the petitioner and his sister M. P. have attained majority, the said trust-estate has not been divided between them ; but the said 3f. P.'s share of these funds was intromitted with, and managed by, the said T. P., as trustee foresaid, up to the date of his death on 27th July last. None of the other children of the said A. P., who are all now dead, either attained majority or were married. In ronserpirnce of the failure of all the trustees of the said A. P., Mr A. P., aecountant in E., has been appointed by your Lord- ships, on I'Mh November last, judicial factor on the Baid A. P.'a trust-estate. Exco])t himself, there are no other near relations of the said M. P. known to the petitioner. The petitioner declines to sue out a cognition, or to claim the legal tutory of his sister. In thesp rireumstances, it is necessary that a curator bonis be appointed to the said M. P., and the petitioner begs leave to Suggest the said A. R. nn a proper person to be ai>pf)inted to that office. Mr P. has not. previous to his appointment as factor on the trust-estate, been in any way connected with the matters, either of the petitioner or of the said M. P. There is no such contrarietv of interest as to render this combination of offices APPLICATIONS FOR APPOINTMENT. Ixxiii inconsistent. It will not only be the means of saving exxjense to the said M. P., but be, as is proved by the benefits which arose from the management of the said T. B., as trustee and for belioof of all parties, productive of other advantages. May it therefore please your Lordships to appoint this petition with the annexed certificates to be intimated on the walls and in the minute-book in common form, and to be served on the said M. P., with an order on her to lodge answers, if she any have, within eight days ; and thereafter, on resuming con- sideration hereof, with or without answers, to appoint the said A. R., or such other person as your Lordships may name, to be curator honis to the said M. P., with the usual powers, he always finding caution before extract; and to decern ad interim; or to do otherwise in the premises as to your Lordships shall seem proper. According to Justice, &c. (Signed by Counsel.) Ckrtifioates of Mental Incapacity. I. Certificate by D. S., Esq., M.D. J). Lunatic Asylum, 21st Novemher 1858. I certify, on soul and conscience, that Miss M. P., daughter of the late Mr A. P., banker in E., is at present labouring under an attack of mania, and is incapable of managing her own affairs, or giving directions for the management of them. Miss P. has been an occasional inmate of this Asylum, while labouring under similar attacks, since the year 1833, and her present residence in the Asylum dates from the 7th of April 1852. (Signed) D. S., M.D., Physn., D.L.A. II. Certificate hy S. J., Esq., M.D. I hereby certify, on soul and conscience, that I have, within these few days, visited Miss M. P., and that I found, and still find her labouring under a severe attack of mania, which entirely unfits her for managing her own affairs, or giving any direction in re- gard to them ; and there is no prospect of her being able to do so for at least some considerable time to come. (Signed) S. J., M.D., L.R.C.S. I)., 22d November 1858. Ixxiv APPENDIX. — F0UM8. 12. Prayer of a Potitiun for an interim appoiutmeut. A statement uf the circumstances necessitating an interim up- pointment slioulJ be in the petition. After intimation and service are craved, insert in the prayer — " And pending the currency of intimation and service to appoint tlie said ..1. B., or such other person as your Lordships may think proper, to be (judicial factor, factor loco tuioris, factor loco abscntis, or curator boiiis, as the case may be) ad inierhn until your Lordships shall grant or refuse the prayer hereof for a permanent appointment, witli the usual powers, he al- ways finding caution before extract ; and to decern ad interim ; and thereafter, on resuming consideration hereof,"' *tc. (as in other styles). 13, Petition for the appointment of a Factor pending litigation. T'nto the Eight llonouralde the Levels of Council and Session, the I)etition of Mrs J. T. or /•'., wife of T. F. of A., with consent of the said T. F., and the said 7'. /''. for liis interest, and C. T., merchant in IL ; Ilundjly Slicweth, — That the late li. T., cai)tain in her Majesty's 2'Jth iJegimcnt of Foot, died at Z. on the 2'Jtli October last un- married. He was survived by two brothers and a sister, his brothers being the petitioner C. 7\, and T. W. T., banker in D., and his sister being the petitioner Mrs J. T. or /•'. Captain 2'. died possessed of heritable and moveable property; l»ut his personal estate did not exceed i:200 sterling. His heritable property was of considerable value, and consisted of the estate of Z.^ in the county of T/., yielding about .£700 per aniinm, which he had j)urchased some few years previous to his death, and held in fee-simple. To this estate the said T. IT. 7'., as his brother's heir of conquest, served, and he entered upon and has since remained in possession of the same. To his doing so, the petitioners, in the belief that r'ajttain T. died intestate, offered no opposition. (Jn Ibis understanding, the petitioner C T. cxpede confirmation as executor of his brother Captain T'., ami he has realized and col- lected the moveable estate, and holds it in this character subject to the legal rights of all parties concerned. It has been within the last mr>nfh discovorcl that Captain T'., so APPLICATIONS FOR APPOINTMENT. IxxV far back as 1843, when he had not purchased the said estate, but was possessed only of moveable property, did execute a disposition and settlement of all the property, heritable as well as moveable, which then belonged, or might belong, to him ; and this deed, the petitioners hold, must now regulate the distribution of Captain TJs estate. The said T. W. T., however, refuses to acknowledge the validity of this deed, and denies that, even though it validly affected his deceased brother's moveable estate, he, as the hond fide possessor of the heritable property on a legal title independent of the deed altogether, can be called upon to implement it, and to surrender the property he possesses for distribution under the deed of settle- ment of Captain T. This disposition and settlement, which is dated 2d February 1843, and which has been recorded in the Books of Council and Session on the 10th day of July last, is in favour of the said T. W. T., but it is declared " that these presents are granted with and under the burden of payment of all mj'' just and lawful debts, deathbed and funeral expenses, and also with and under the burden of the follow- ing legacies and bequests, which I hereby legate and bequeath to the several persons after mentioned." Among the legacies so left there is one of £500 to each of the petitioners, Mrs J. T. or i^., and G. T. An extract of the disposition and settlement is herewith produced. The other legatees are M. H. S., W. S., and M. D. S., children of a deceased sister of the petitioners and Captain T., who was married to W. S., writer in T., where they all reside. The said W. S. is the administrator-in-law of such of them as are minors. In order to vindicate the validity of the disposition and settle- ment, and their rights under the aforesaid legacies, the petitioners have raised an action of declarator against the said T. W. T., con- cluding that Captain T.'s settlement is a valid and subsisting deed, and contains an effectual disposition of his heritable as well as his moveable property for the purposes thereof, and that the said T. W. T., as heir of the said Captain T., and as having made up titles to his lands, is bound to hold the same and to make them available for payment of the legacies left by Captain T., and to make satisfaction or payment of those legacies which are due to the petitioners. A copy of the summons is herewith produced. In these circumstances, as there is a competition for the said estate, it is necessary, in order to the protection of the interests of all parties, that the estate, both heritable and moveable, of the said Captain T. should be sequestrated and put under judicial manage- ment. The petitioners would suggest Mr Q. R., writer in Z)., as a XXVI All'KNDlX. — FOUMS. proper person for the office of judicial factor. ]Io is factor on the adjoining property of A'., belonging to the Manpiis of /.. May it therefore please your Lordshiiis to ai)point this petition to he intimated on the walls ami in tiie minute-liook in common form, and to he served on the said T. W. T. and M. H. S., W. S., and M. D. S., and also upon the said W. S., as administrator- in-law of such of his children as may be in minority, and to ordain them to lodire answers, if they any have, within eight days; and on resuming consideration hereof, witii or without answers, to sequestrate the estates of the said deceased Captain T., and to nominate and appoint the said Q. Jl., or such other person as your Lordships may think proper, to be judicial factor thereon, with the usual powers, he finding caution before extract in common form ; and to decern ad iiitcrim ; or to do otherwise as to your Lordships may seem proper. According to Justice, &c. (Signed by Counsel.) 14. Petition for the appointment of a Factor on a lapsed Statutory Trust-Estate. Unto the Riglit Honourable the Lords of Pounril and Session, the Petition of G. P., Esq., provost, Af. -/., J>. ./.. ./. M., and li. W., bailies, A. G., treasurer, and G. A., ./. A'., .S'. J., &c. &c., coun- cillors, and T. S., dean of guild, all of the royal burgh of L^ as representing the said burgh and the community thereof, and also as commissioners of jiolice thereof, under the General Police Act, 13 and 14 Vict., cap. 33, intituled " An Act to make more effectual provision f(jr regulating the jMdice of towns ami jtopnlous places in Scotland, and for paving, draining, rleansing, lighting, and improviiig tlie same;" Humbly Shcweth, — That in May IS40, and for some time pre- viously, the polire of the said burgh and places adjacent was and had been regulated by the Local and Personal Art, 7 and 8 Will. IV., cap. ItOl, intituled " A?i Act for the better paving, ligliting, watching, and rleansing the burgh of />., and for maintaining and regulating the police of the same and places adjacent, and other purposes relating thoreto ;" but the said General Police Act having, of this date (K>th May 1840), been adopted by the householders of ♦ he paid burgh, as is providpd by § 7 of that A^t, the said Loral APPLICATIONS FOR APPOlNTMtNT. Ixxvii Police Act was tliereby, and on such adoption, repealed, and the management of the police of the said burgh devolved on the peti- tioners under §§ 38 and 387 of the said General Police Act. At the date of the repeal of the said Local Police Act, the com- missioners under it were -4. B., merchant iixL., CD., banker there, &c. &c. Those parties, as commissioners foresaid, had vested in and belonging to them as such certain funds, means, and estate, which they ceased to hold by said repeal ; and, in consequence of the said General Police Act containing no clause vesting in the petitioners, as the commissioners under it, or in any other party the said funds, means, and estate, there is no person in right thereof, or entitled to take charge of, protect, or administer the same. The said funds, means, and estate consist of the following sub- jects, &c., viz: — 1. The police-office and other premises connected therewith in the said burgh. 2. A gunpowder magazine situated in C. Street of the said burgh. 3. The sum of £561, 10s. lid., being the balance due on account with the Eoyal Bank of Scotland at the said 16th May 1849, with interest accruing thereon. There are, however, outstanding a considerable numljer of claims and debts against the said commissioners, under the said Local Police Act ; but the amount thereof has not been ascertained by the petitioners. In these circumstances, and in order that the said funds, means, and estates may be taken charge of, protected, and administered for behoof of the creditors of the said commissioners under the said Local Act, and of all having interest thereon, it is necessary to crave the appointment of a judicial factor thereon. The petitioners beg to suggest Mr D. B., accountant in Z., as a fit and proper per- son for the office. He was chosen about five years ago by the house- holders to be auditor of the accounts of the commissioners under the said Local Act, and has been re-elected every year since his first appointment. He has discharged his duty in every respect to the satisfaction of the commissioners and his constituents, and it would be difficult to find a party who possessed in a greater degree the confidence of the entire community. May it therefore please your Lordships to appoint this petition to be intimated on the walls and in the minute-book in com- mon form, and also on the door of the town-hall of the said burgh, and to be served upon the said A. B., C. D., &c., and to ordain them to lodge answers thereto, if they anj'have, within IXXVllI Al'l'ENDlX. — KOIIMS. eight days; ami upon resuming consideratiou iKivof, witli or without answers, to apjioint the said D. li., or such other per- son as your Lordships may think proper, to be judicial factor on the funds, means, and estate belonging to, or vested in, or in the possession, or under the control of the said commissioners under the said Local Police Act, 7 and 8 Will. IV., cap. UOl, with the usual powers, he finding caution before extract; and to decern ad interim ; or to do otherwise as to your Lordships may seem proper. According to Justice, &c. (Signed by Counsel.) 15. Conclusions of a Summons in wliicli payment alterna- tively asked to a Factor to be ai>pointeJ by tbe Court (as in Tlie Town of Dundee v. Morris and others, 30 Jurist, 528, and Macquccn, iii. 134,— 1st May 1858). Therefore it ought and should be found and declared, by decree of the Lords of Our Council and Session, that the testamentary writings left by the said John Morgan, and mentioned in the said condescendence, contain a valid legacy and bequest of the whole of the residue of his moveable means and estate, after paying legacies, debts, and charges of administration, or at least of so much thereof as may be necessary, for the purpose of erecting and establishing in the town of Dundee an hospital to accommodate 100 boys, and that the same are valid and eflectual as testamentary deeds of the deceased to that eflect : And it ought to be further found and declared that the succession of the deceased is burdened with the said bequest, and that the defender, the said , as executor foresaid, or the party or parties, who may be found entitled to succeed to the deceased's moveable estate, is or are bound to hold and retain rhe residue of the said John iMorgan's moveable means and estate, or at least so much thereof as may be necessary, for the purpose of erecting and establishing, in the town of Dundee, an hospital to accommodate 100 boys, in fuHilment of the testamentary bequest and intention of the said deceased dohn Morgan, subject to the orders of the Court in order to its ai»i»lication for the [lurpose of founding an hospital : Or othenvise, is or are bound to pay over the same to the pursuers, or to such person or persons as may be aiijiointod by Our said Lords, for the purpose of superintending the erection and establishment of the said hospital, or for rarrj'ing such testamentary APPLICATIONS FOR SPECIAL POWERS. Ixxix purpose into effect : And the defender, the said , or the defenders, the said and , if they shall have intromitted with said estate as representatives of the said deceased, ought and should he decerned and ordained, hy decree foresaid, to pay and make over to the pursuers, in order to the same being applied by them to the erection and establishment of an hospital as aforesaid, or to such person or persons as may he appointed by Our said Lords in the course of the proceedings to follow hereon for the purpose aforesaid, the sum of £100,000 sterling, or such other sum, more or less, as shall appear or be fixed by Our said Lords, in the process to follow hereon, to be the amount of the residue of the moveable means and estate of the said John Morgan, or as the amount necessary for erecting and establishing, in the town of Dundee, an hospital to accommodate 100 boys, in fulfilment of the testamentary bequest and intention of the said John Morgan : And Our said Lords should decern and ordain that a scheme or schemes, for the application and disposal of the funds bequeathed as afore- said, should be prepared, in order that by the authority of Our said Lords a scheme may be made and fixed for the application and disposal of the said funds, in fulfilment of the testamentary inten- tions of the said John Morgan, &c. Note. — The competency of the summons, from which the above conclusions are taken, was decided on 14th Dec. 1856, 19 D. 168. See also the Caer- laverock Case— Shepherd v. Button's Trs.— 24th Feb. 1855, 17 D. 518. Second, APPLICATIONS FOE SPECIAL POWEES. 1. Petition by a Judicial Factor on a Trust-Estate for power to comxjlete a title, &c. Unto the Eight Honourable the Lords of Council and Session, the Petition of J. C, house-agent, G., judicial factor on the trust- estate of the deceased J. 0., sometime merchant, afterwards residing in G., conform to Act and Decree, dated 26th Nov. 1858; Humbly Sheweth, — That the said deceased J. 0., by his trust- disposition and settlement, &c. (here insert the narrative of the application for appointment as in petition No. 4, sujjra, p. Ivii-lix). Tour Lordships were pleased, of this date (26th November 1858), upon the application of the said Mrs J. 0. or Z)., and A. S. 0., of IXXX AITENDIX. rOKMS. the Inland Rcvt-niu', li., to nominute ami appiiint tlie petitioner to be judicial factor upon the trust-estate of the said deceased J. 0. The petitioner luiving found caution, the extract of his appointment was issued of this date (lyth December 1858), and he thereafter entered upon the discharge of the duties of his office. The petitioner finds that all the purposes of tlie trust have been fulfilled except the last, which relates to the division of the residue of the estate. The period of division and pa3-ment of the residue of the trust-estate to the beneficiaries is past and bygone — the life- renter having died as aforesaid, and the parties entitled to the resi- due being all now above majority or married. The truster's daughter M. A. O., who was married to the said D. II., is the only one of the family who has died, leaving issue one daughter, the said J. M. H. Moreover, the petitioner has had adilressed to him a demand by tlie said Mrs J. 0. or Z>., A. S. O., and J. M. II., that he proceed forthwith to divide the estate, and pay to them the shares thereof, to which they are entitled as aforesaid, and they have called upon the petitioner to sell the said heritable property, in order that he may be in a position to do so. The letter containing this demand is dated the olst December last, and is herewith produced. The tmst-estate, so far as not already disposed of, and besides a small cash balance in the petitioner's hands, consists entirely of a piece of ground and houses thereon, situated in J. S., Glasgow (A), of which the descrii)tion is as follows; — viz.. All and Wliole, &c. (Here take it in). (B.) The trustees of the said J. O. made up a title to the said subjects, in the persons of the said //. //., J. 7'., W. T., A. 0., and J. 0., and tlie survivors or survivor on the estate and eflecls, heritahh' and niovealde, of the deceased Miss S. W., residing at No. 120 S. Street, JiJ., conform to extract- decree in liis favour, dated 25th June 1854 ; Humbly Showeth, — That the said Miss S. IT. died, &c. (as nar- rated in petition for appointment, supra, p. Ix-lxii). In this state of matters a petition was presented, of this date (21 st l^Iay 1854), by tlie said P. S., settin.c; forth the circumstance above detailed, and asking the appointment of a factor, wliich, after inti- mation and sendee, was granted on 4th June 1854. Tlie petitioner was then appointed to the oilice, and he, having found caution to the satisfaction of the clerk of Court, obtained an extract of his appointment on the said 25th June 1854. It is herewith pro- duced. The petitioner thereafter entered upon the duties of his office, and proceeded to realize the furniture and other moveable effects of which the estate consisted, as above mentioned. The petitioner has, however, in the circumstances to be imnu-iliately mentioned, found it necessary to ask sitecial powers in reference to the further management of the estate. The heritable estate of the deceased (S'. ]V. consisted of the sum of £2500, already referred to as consigned in the N. Bank at D., by the debtor in a bond and disposition in security in her favour, in consefjuencc of there bt'ing no party in (itulo to grant a discharge thereof, he having, previous to her death, intimated that it would bo paid up at tlie then ensuinp term of Martinmas 1853. In virtue of the oflicc of judicial factor conferreil by your Lordships upon the i)eti- tioner, the said sum of £2500, and all interest due thereon, falls to be paid to him ; but in order to enable him to uplift and receive pay- ment of the same, it is necessary that he should bo specially em- powered and authorized by your Lord.ships to grant a discharge of the said bond anetitioner intends very shortly to pro- ceed to New Zealand, with the view of permanently residing there, it is desirable that, before leaving this country, he should obtain payment thereof. He accordingly, as factor and commissioner foresaid, made ap[dication to the said judicial factor for payment thereof, with the view of transiuitting the same to his constituents : but the factor seemed to consider the pupilarity of the other residu- ary legatee an insurmountable obstacle to his doing so. It has therefore become necessary to apply to your Lordships for a warrant on the said judicial factor to make such payment accordingly. May it therefore please j'our Lordsliips to direct intimation of this petition to be made in the minute-book and on tlie walls in common form, and also to be served on the said A. K., and /. //., his cautioner, and also on the said S. S., and her tutors and curators, if she any have, for their interest, and appoint them to lodge answers hereto, if they any have, within eight days ; and thereafter, upon resuming consideration liereof, with or without answers, to order the said A. K. to produce accounts of his intromissions with the trust-estate ; to remit them, when lodged, to an accountant to examine and audit the same, and report; and upon a report from him, to approve thereof, and fi-x the balance on tlie same; and also to ascertain and fix the amount of the residue of the said trust-estate : And farther, to grant warrant on and ordain the said A. K. to make payment to the petitioner, as factor and commissioner for the said M. I'. and ir. T. junior, of the one-half of the trust-estate of the said J.S.; and upon bis making such payment, to oxonor and dis- charge the said A. K. and his cautioner thereof ; and to decern ad interim ; or to do othrrwiso in the premises as to ynnr Lord- ships shall seem proper. According to Justice, &c. (Signed by Counsel.) Al'l'LICATIONS FOR RECALL AND DISCHARGE. XClll Third, APPLICATIONS FOR RECALL AND DISCHARGE. 1. Petitiuii for Eecall of the Appointment, a Successor in the office, and Discharge of his predecessor. Unto the Right Honourahh' the Lords of Council and Session, the petition of W. 0. P., barrister- at-law, and F. G., writer, Stone- haven, his mandatory ; Humhly Sheweth, — That by antenuptial contract of marriage, entered into between the petitioner's deceased father and mother, W. 0. P., Esq. of M. a, and A. B., daughter of P. B., merchant in (?., dated 18th November 1822, and recorded in the Books of Council and Session the 1st December 1822, they conveyed to cer- tain parties, who are now all dead, in trust six policies of insurance with the North British, Scottish Widows' Fund, and Scottish Equit- able Life Offices, and heritable property, consisting of the estates of P. and Q., in the county of Fife, being in all of the value of about £100,000, to be retained for behoof of the children of the marriage, in liferent, and paid over to the last surviving son of the marriage and his heirs in fee. Of the marriage there were born three sons and two daughters, who all survive, viz., S. P. or 31., wife of JE. 31., Esq., advocate, H. P. or C, wife of G. C, Esq. of Q., P. P., Esq., M.D. in B., N. P., Esq., solicitor, D., and the petitioner. On the death of the survivor of the said trustees in 1855, L. 31., S.S.C, was appointed judicial factor on the trust-estate on the ap- plication of the petitioner. That petition was presented on 22d May 1855, and extract of the appointment following thereon, in the saidiy. 3I.'s favour, was obtained by liim on 1st June thereafter. A. R., S.S.C, is his cautioner in the factory. The said L. 31. entered upon the management of the said estate. and immediately thereafter presented a petition for authority to make up titles in his person to the said estates of P. and Q., but the application was, on IStli July 1855, refused as unnecessary, and he was found liable in expenses. In the course of his management, the said L. 31. having drawn the revenues and produce of the estate, he exhibited states thereof, and made payment of the balance tiioreon to all the pajtios interested once a -year, up to the term of Whitsunday last. He has since re- ceived sums to the amount of £1000. or thereabouts, on account of the revenues and produce of the estate. XCIV APPENDIX. — FORMS. The said L. M. is notour bankrupt, he having been charged upon a bill by S. J., London, for £559, IGs. lid. sterlinp^, on the 10th day of the present month; and on the expiry of the days of charge, in consequence of his inability to pay the said debt, he retired to the Sanctuary'. A copy of the entry in the list of protections granted at Holy rood is herewith produced. In these circumstances it is necessary, for the protection of the said trust-estate, and of the interests of the petitioner and the other parties foresaid therein, that the said L. M. should be superseded in the judicial office he holds, a successor therein appointed, and his accounts adjusted quam priminn. The petitioner would suggest Mr A. N., accountant in Edinburgh, as a fit and proper person for the office. May it therefore please your Lordships to appoint this petition to be intimated on the walls and in the minute-book in com- mon form, and to be served on the said L. M., and on his cautioner the said A. J?., and also upon the said S. P. or M., and E. M., H. P. or C, and G. C, and P. P., and N. P., and ordain them to lodge answers thereto within eight days, if they any have ; and on resuming consideration hereof, with or without answers, to Recall the appointment of the said L. M. to be judicial factor foresaid, and to nominate and appoint the said A. N., or such other person as your Lordships may think proper to be judicial factor on the estates, heritable and move- able, conveyed in trust by the said antenu])tial contract of marriage, with the usual powers, he finding caution before ex- tract : And further, to order the said L. M. to lodge accounts of his intromissions with the said trust-estates; to remit them, when loflged, to an accountant to examine and audit the same, and report; and, upon a report from him, to apjjrovc thereof, and to fix the balance thereon ; and, in the event of a balance being found due l)y the said L. M., to decern and ordain the said L. M., and his cautioner the said A. P., to make payment thereof, conjunctly and severally, to the judicial factor to be herein appointed : Or, in the event of a balance being due to the said L. M., to authorize and empower the factor to be ap- pointed herein to j)ay the amount thereof out of the said trtist- estates : And further, upon payment of such balance by the said L. M. and yl. 7?. as may be found due by them, or other- wise forthwith to exoner and discharge them of the whole actings, intromissions, and management had under the factory, and to ordain the bond of caution to be delivered up: Ami APPLICATIONS FOR RECALL AND DISCHARGE. XCV further, to find that the expenses incurred herein, and in the procedure to follow hereon, shall form a good and lawful charge against the said trust-estates, and authorize the factor to be ap- pointed herein to pay and take credit for the same accordingly; or otherwise, to find the party or parties appearing herein liable in the same ; and to decern ad interim ; or to do farther and otherwise in the premises as to your Lordships may seem proper. According to Justice, &c. (Signed by Counsel.) 2. Petition for Eecall of the Management, and his Dis- charge by a Judicial Factor. Unto the Right Honourable the Lords of Council and Session, the Petition of W. W., accountant in U., judicial factor on the estate of the deceased Miss S. W., of No. 120 S. Street, U. ; Humbly Sheweth, — That the said Miss S. W. died on or about the 14th day of June 1853, possessed of, or having right to, the following heritable and moveable property, viz : — \st^ Cash amount- ing to £86 ; 2cZ, Household furniture valued, exclusive of some silver-plate, at £822, 3s. 6d. ; 3(Z, A sum of £2500, invested on herit- able security, and interest thereon, as after mentioned ; A:t\ A sum of £146, 13s. 4d., contained in a personal bond, dated 27th and 30th November 1839, granted by /. D., Esq. of W., in favour of the late D. W., Esq., V.S., the brother of the said S. W. ; and 5tli, A sum of £1670, being the balance of a bill for £1900, dated 15th May 1826, granted by the late Major /, H. to Miss W. At the time of Miss IT.'s death, it was not known who was her heir or next of kin ; and with the view of protecting the interests of all concerned, a petition was, of this date (June 25, 1853), pre- sented to the Sheriff of Edinburgh, for a warrant to the Sherifi"- clerk to open the repositories of the deceased, and to inventory and take charge of whatever property, effects, and papers might be found within her house in S. Street. Warrant having been granted, the Sheriflf-clerk opened the repositories, and inventoried and took charge of the effects and papers of the deceased. No writings of a testamentary natui'e, nor any documents, tending to show who her representatives were, were found in her repositories. A portion of the effects, consisting of silver-plate and other articles XCVl AITENDIX. — FORMS. of value, was, of tliis date (Au^^ust 31, 1853), deposited liy warrant of the Sheriff in tlio Xutional Iknk of Scotland for safety; and her other household furniture was reniuvrd (n tlu- wardrooms of Messrs D. and L., G. Street, E. Some time before Miss IF.'s death, intim iiiou imd Iil-cmi given that the foresaid sum of £*25U0, which formed part of an lierifable bond granted by P. Q. of Z. over the estate of Z., was lo be \ni'u\ up at the term of Martinmas 18o3, and she having died before that term, and there being no i)arty in iitulo to discharge this debt, it was consigned by the debtors in the N. Bank at D. In this state of matters, and with the view of preserving the estate of Miss W. for behoof uf her legal representatives, a peti- tion was presented, of this date (June 14, 1854), to your Lordships, by Mr P. S., "VV.S., who had been the agent of Miss W., and who was also one of the trustees under the deed of settlement of her brother, the said D. IV., for the api»ointment of a judicial factor upon Miss W.'s estate, with the usual powers. Intimation and service of this petition having been made, the petitioner was, of this date (July 4, 1854), nominated and appointed, by your Lord- ships, judicial factor upon the estate and eflects, heritable and moveable, of Miss JF., and having found caution in common form, he, of this date (July 25, 1854), obtained an extract-decreo of his appointment. It is herewith prodiiced. The j)etitioner thereupon entered upon the duties of his office, and realized the furniture and certain other moveable eO'ects of which the estate consisted, and, of this date (Jan. 20, 1855), he presented a petition to your Lordships for special powers, in order to enable him to uplift and receive the sum of £2500, consigneil as aforesaid, which, with interest thereon up to Martinmas 1854. am(mnted to<£2<)12, 14s. Id.; and also to take certain steps relative to the foresaid sum of £1070, being the balance of the debt con- stituted by the said Major J. H.'a bill, as well as to get himself confirmed executor to Miss W., in order to his completing a title to the moveable property of which her estate consisted. After inti- mation and service of this petition, your Lordships, of this date (March 0, 1855), were pleased to grant power to the petitioner to uplift the said consigned sum of £2500, and interest, and to grant discharge therefor; but your Lordships declined to give him any other special powers, leaving him to take what steps he should lie mlvised that he was entitled and ought to an that oflice, and for a time administered his estate. Thereafter, in the year 1848, Mr D. having become insane, and a curator honis having been appointed to him, your Lordships were plea.sed to recall his appointment as factor foresaid, and to substi- tute in his place, on the 10th of December of that year, !Mr IV. B., late of K.y who also found caution, and entered upon the manage- ment of the said estate. The saifl Afr B. having, however, diffl in April ISol, your Lord- APPLICATIONS FOR RECALL AND DISCHARGE. XCIX ships, upon a petition being presented by the present petitioner, on 16th May 1851, appointed Mr A. H., writer, K., as his successor in the office of factor loco absentis ; and he having likewise found caution in common form, extracted the decree of his appointment on 1st June 1851, and entered upon said office, which he still con- tinues to hold. A. P., farmer at Z>., is cautioner in the factory. By state lodged by Mr H. at the end of last year, 1855, it appears that the estate under his charge consists of the fojlowing : — 1. The pro indiviso half of certain heritable properties in K.^ the rental of which, as per state, in 1855, was £151, 10s. 2. Two shares in the new Gas Light Company of K., valued at £25 per share. 3. Money lying in the Royal Bank of Scotland, in an account-cur- rent in name of factor, with interest thereon since 31st Dec. 1854, £1029, 18s. 4. Eifects in possession of factor, as specified in the inventory given up by him, valued at £24, 7s. 9d. The petitioner having ascertained that the said W. 0. B., who was his only brotlier, had left Calcutta in bad health in the year 1843, in the brig Mary of Baltimore, bound for England, and that he died on board of said vessel on the 29th day of October of that year, before reaching the Cape of Grood Hope, presented a petition to the Sheriff of Chancery, praying to be served heir in general to his said deceased brother. Upon advising this petition and the proof adduced, the said Sheriff was pleased, of this date (10th Jan. 1856), to serve the petitioner as heir in general to his said brother, con- form to extract-retour of service to be produced in the proceedings to follow hereon. The petitioner was, of this other date (4th Oct. 1855), also decerned, by the Commissary of Ayrshire, executor to his said deceased brother, conform to decree-dative, also to be produced. In these circumstances, the appointment of factor loco ahsentis being no longer necessary, and the petitioner being in titulo to ex- oner and discharge the factor, the present application is humbly made to your Lordships, in order that the said factory may be re- called, the accounts of the said factor audited, and on the same being found correct, he himself exonered of his intromissions, and his bond of caution delivered up. May it therefore please your Lordships to appoint this petition to be intimated on the walls and in the minute-book in com- mon form, and to be served on the said A, H. and A. P., and to appoint them to lodge answers thereto, if they any have, within eight days after service ; and on resuming consideration AriM'.XMX. — FORMS. hereof, witli or witliout answers, to recall the said factory, and the apiioiiitnicnt of the said A. IT. as factor loco ahscntis fore- said ; to order the said A. If. to lodge accounts of his intromis- sions and nianagomeiit ; to remit his accounts to the Account- nnt-Goneral to examine and audit the same, and to report ; and, upon a report from him. to approve thereof, and to fix the balance thereon; and in the event of a halance being found due by the said A. IF., to decern and ordain him, and the said A. P. his cautioner, to make payment thereof, conjunctly and severally, to the petitioner : And, upon payment of such bal- ance to the petitioner, to exoner and discharge the said A. H. and the said A. P. of the whole actings, intromissions, and management had under the factory, and to ordain their bond of caution to be delivered up : And further, to find the party or parties appearing and opposing this petition liable in expenses to the petitioner, and to decern ; or to do further and otherwise in the premises as to your Lordships may seem proper. According to Justice, Sec. (Signed by Counsel.) 4. Petition for Discliargc and Exoneration by a Curator bonis to a I\rinor capox on cxjiiry of liit? olHcc. This petition will be similar to No. 2 (supra, p. xcv) in its state- ments and iirayer, only that in tlie former the word ''recall" must be omitted; and in the latter, for the portion seeking recall, there will be substituted a prayer "to find that the curatory of the said has fallen and come to an end." A petition so framed is competent before the Junior Lord Ordinary in session, and tlie Lord Ordinary on the Bills in vacation ; whereas one praying for recall is not. (See supra, Chapter V. — On Procedure.) INCIDENTAL ArPLICATIONS. CI Fourth, INCIDENTAL APPLICATIONS. 1. Petition for luteiiiii Audit. Unto the Right Honourable the Lords of Council and Session, the Petition of W. /., W.S., judicial factor on the trust-estate of the late P. F., Esq. of H., conform to extract-decree, dated 24th Dec. 1847 ; Humbly Sheweth, — That the petitioner was appointed as afore- said on the 28th day of November 1847, and having found caution (H. I., residing at M., being his cautioner in the factory), he obtained the extract-decree, of the date above mentioned and herewith produced. Thereafter the petitioner entered upon the management of the said trust-estate, with which he has had intromissions to the amount of about £3000 a-year during the period for which he has continued since to manage it. The petitioner has lodged, under the Act of Sederunt 1730, the inventory, rental, and annual accounts which it fell to him to lodge, but no audit of these has taken place. During the course of ten years a very great number of vouchers have accumulated, and it is expedient that these should be forthwith examined in connection with the accounts. The petitioner is not only anxious to know that his past man- agement has been conducted so as to satisfy the Court, but his cautioner has pressed upon him the propriety of making the pre- sent application with a view to the ascertainment of a correct balance on the accounts; an object which must be advantageous to all parties concerned. The petitioner for the factor's appointment was i?. F., now of H., and the parties called as respondents in that application were the other beneficiaries under the trust, G. F., S.S.C., B. F. or 31., and her husband, /. J/., advocate, and E. F. or P., and her husband, W. A. P., residing at T. May it therefore please your Lordships to appoint this petition to be intimated on the walls and in the minute-book in common form, and to be served on the said H. I., the peti- tioner's cautioner, and also on the said B. F., G. F., B. F. or M., and J. 3L, and E. F. or P., and W. A. P., and them to lodge answers thereto, if they any have, within eight days: h en APPENDIX. — FORMS. and u|X)n resumint? consideration hereof, uitli or without answers, to remit the petitioner't! accounts to an accountant, to examine and audit the sam**, and to report; and upon a report from him, to approve thereof, and to fix the bahmce thereon ; and to authorize tlie expenses of the procedure herein to he char-^^ed against tlie estate, or to find the party or parties appearing to oppose liable in expenses to the peti- tioner; and to decern od interim; or to do dthcrwise as to your Lordships shall seem proper. According to Justice, &c. (Signed by Counsel.-) 2. Petition for delivery of Boiul of Caution by a Curator bonis to a Elinor capaw, wlio has obtained an Extrajudi- cial Discharge. Unto the Right Honourable the Lords of Council and Session, the Petition of D, S., accountant in E., formerly curator hrmis to G. D., Esq. of R. ; Humbly Shcweth, — That a petition was, on 2Sth January 1848, presented by \V. D., residing in £*., the only known relative of the said (/. D., who was then a minor, craving tlie ajipointnu-nt of a curator hutiis to the said G. D. On 15th February following the petitioner was appointed to the office, and having found caution, he obtained extract of the decree in bis favour on 2r)th February 1818. It is herewith produced. A. B. N., banker, was the petitioner's cautioner in the curatory. The said G. D. attained majority on 1st January 185/5, and the petitioner's office of curator hojtis to him thereuixm fell and expired. Tlie said G. D. thenafter called upon the petitioner to render accounts of bis intromissions, and to pay over such Imlance as might be due by him. The j)etitioner submitted these accounts along with the vouchers thereof to the said G. />., and he has docquetod and subscribed them os examined and founf iiis claim for the exju-nsc of this INCIDENTAL APPLICATIONS. Clll application. The said G. D., also of that date, executed u dia- charge in favour of the petitioner and the said A. B. N., his cau- tioner, of all the actings, intromissions, and management had under the curatory. That discharge is recorded in the Books of Council and Session on 2d February 1855, and an extract thereof is herewith produced. Since the execution of the said discharge, the period of four years, allowed by law for challenges of any acts done to the minor's prejudice during his minority, has elapsed without the said G. D. having intimated any intention of repudiating the settlement and discharge above mentioned. In these circumstances, your Lordships are respectfully craved to order delivery to be made to the petitioner of the bond of cau- tion he lodged at his entry upon ofSce. May it therefore please your Lordships to appoint intimation of this petition to be made on the walls and in the minute- book in common form, and to be served upon the said A. B., N., W. D., and G. D., and them to lodge answers thereto, if they any have, within eight days ; and on resuming con- sideration hereof, with or without answers, to ordain the peti- tioner's bond of caution to be delivered uj); and to decern ; or to do otherwise as to your Lordships may seem proper. According to Justice, &c. (Signed by Counsel.) 3. Petition by a Curator bonis to a party incapax to have caution limited, and a bond of a Guarantee Association accepted. Unto the Eight Honourable the Lords of Council and Session, the Petition of N. B., Esq., advocate, E., curator bonis nominated to ,/. M., Es(i. of G., in the count}'^ of D. ; Humbly Sheweth, — That the said J. 31., Esq. of G., has been for some years in a state of mental derangement, which totally incapacitates him from managing his affairs. B. M., Esq., AY.S., now deceased, was, upon the 22d January 1853, appointed his curator bonis, but in consequence of his having gone to India for a time, his appointment was recalled, and, of this date (Feb. 21, 1857), the petitioner was appointed curator h2 CIV APPESmX. — FORMS. Ikihi's to the saiM ./. Jf. in Iiis tstcad. Tlic extract-decree in the petitioner's favour is diiled 2otli Yv\\. ISoT, and is litMcwitli pro- dnred. A\ F. M., advcwate, became cautioner for the petitioner previous to his obtaining an extract of his appointment ; but lie having re- cently died, the petitioner has now been called upon by the accountant of Court of new to find caution in the curatory. By the Act 12 and 13 Vict., chap. 51, intituleil '* An Act fur tlie better protection of the property of pupils, absent persons, and persons under mental incapacity in Scotland," section 27th, it is enacted " That it shall be lawful to the Court of Session, or Court of Exchequer, as the case may be, to limit, upon cause shown, the eaution to be found by factors, and tutors, and curators, to a speci- fied amount, and also to authorize, if they shall deem it expedient, bonds or policies of the British Guarantee Association, or other ]>iddic company, incorporated by Act of Parlianient or Koyal Charter, carrying on guarantee business within Scotland, to be accepted and taken instead of bonds of caution by private individuals." The petitioner is unwilling to apply to any of his private friends to become cautioner for him in the curatory, and he is desirous to obtain the benefit of the enactments above (juoted, to the effect of having the caution to be found by him limited to a specified amount, and the bond or guarantee of the British Guarantee Association accepted, instead of a bond of caution by a private individual. The estate of the ward has bceji all realized and ascertained. In the vidimus of funds appended to the last annual account of charge and discharge lodged, his estate was bn^ught as worth about £50,000. A copy of that vidimus is herewith produced. The present income of the estate under the petitioner's manage- ment amounts to about £2000 a-year, but it is expected, that in consequence of the succession wliich will accrue to him through the death of two of his brothers, his yearly ineomo will be increased to about £3000. The jjctitioner humbly submits that this sum would form a proper limit to the amf)unt of the caution to bo found by him. It is an amount which, under ordinary circumstances, and under the regulations now in strict force under the statute above mentioned, will much exceed any sura belonging to the estate under his management, which is likely at one time to he in the petitioner's hands, or subjeet to his control. The petitioner also humbly submits, that the bond or policy of the Hritish Guarantee Association, incorporated by lioyal Charter, the responsibility of which is now recognised and daily accepted in preference to private sureties by the various departments of (Jovern- INCIDENTAL Al'PLIOATIONS. CV meiit, and by the Courts of Chancery and tlie County Courts of Enghand, as well ashy hanking and other public companies, is un- doubted, and is preferable, or, at all events, equal to the security afforded by bond granted by any ordinary private individual ; and that it would he expedient and proper to authorize the same to be received on behalf of the petitioner. The nearest relatives of the said /. M. are his mother, Mrs C. N. or M., widow of the late /. R. 31., Esq. of G., residing at G. ; and his sister Miss G. M., also residing at G., — and these are the parties interested in his estate. May it therefore please your Lord^^hips to appoint this petition to be intimated on the walls and in the minute-book in common form; and also to be served upon the said J. Ji., Mrs C. N. or J/., and Miss G. M. ; and to ordain them to lodge answers thereto, if they any have, within eight days ; and upon resuming consi- deration hereof, with or wdthout answers, to limit the caution to be found by the petitioner, as curator bonis foresaid, to the said sum of £3000, or such other sum, more or less, as to your Lord- ships, on report of the accountant of Court, or otherwise, shall seem proper ; and to authorize a bond or policy of the British Guarantee Association to be accepted and taken instead of a bond of caution by a private individual ; and to decern ad interim ; or to do otherwise in the premises as to y. U. 8 and 9 Vict., c. Hi. p. 6. 8 un.l 9 Viit., c. 17, \>i>. 6. 110, 140. 232, 346, 369. H uikI 9 Vict., c. 19, j.. KiO, 173. 8 un.l 9 Vict., C..83, p. 228. 10 and 11 Vict., c. 47, pp. 1G4, 201. 10 and 11 Vict., c. 48, p. 204. 10 and 11 Vict., c. 60, p. 08. 11 and 12 Vict., c. 30 (Uuthcrfurd Act),- pp. 100. 101. 291, :570. 12 and 18 Vict., c. 61 (Pupils Protection Act), pji. 6, 0, lOfi, 161, 200, 270, 290, 311, 314, 321, 326, 344, 30(1, 371, 372, 373, 374, 370, 378, 380, 388. 390. 391. 392. 395. 13 and 14 Vict., c. 30, pp. 13, 858, 869. 16 and 10 Vict., c. 32. p. 19. 10 Vict., c. 20, p. 21, 22. 390. 10 and 17 Vict., c. 154 (Lauds Improvement Company's Act, 1863), pp. 6, 251. 17 and 18 Vict, c. 91, p. 229. 19 and 20 Vict., c. 50 (Exchequer Act), p. 3G. 19 anil 20 Vict., c. 68, p. 230. 19 and 20 Vict., c. GO (Mercantile Law Amendment Act), p. 312. 19 and 20 Vict., c. 79 (Bankrupt Act), p. 7, 86, 233, 337. 341, 344, 347, 348, 300, 881. 20 and 21 Vict., c. 50 (Court (if Session Act, 1867). ]K 5, 7, 9, 22, 99. 104, 320. 341, 342. 344. 309, 373, 374, 377, 378, 379. 380, 390, 394, 396, 390. 20 and 21 Vict., c. 71 (Lunacy Act), p. 00. 21 and 22 Vict., c. 50 (Coutinnatiou and Probate Act). p. 104. 21 and 22 Vict., c. 70 (Titles to Land Act, 1858), p. 1. 146, 2(50, 204. Acts of Sederunt, Rof^ilations of, 18fj — (Jhliprafions tlierein detailed, 180. passeil on 31st .Iidv 1090, 161. 26tli Dccenilier 1708, 161, 189. 192. 27th DecendxT 1709. 338. 23d Nov.inl.er 1710, lliG. 22d NovendMr 1711, 198 31st July 1717, 161, 189,192. 13t]i February 1730. 161, 180. 195, 198, 203, 234, 273. 17th July 1704. 344. 21. st Decend.-r 1705, 844. 6tli June 179t), 344. nth Jtdy 1828. 346, 351, 377. 22d iVr.inlHr 1H3S, 374, 878. 13tii .hdy 1H44. 344. nth DoceinlHT 1H49, 341, 306. 371. 26th Noveml-.r 1867. 13ii, 234,341,361,306,300, 372, 381. 7lh July 1868, 342. See Ord.rs of f'ourl. A'ljiidiiiitiMii, !)• eliiratiiry, mode of ciimi>leting of title by oOicer, 204 — Hy exeentor of warrj, 181. AtHdiivits liy otiicrr, 101. .\u''iits, Wh.n thryeiminukechnrRes, 120, 161,166, 192. 197.211. SieAttc»torn. Alienatinn <>t' Property. See Prf»perfy. Aliment, Where to be ]>rovided. See Kealization. INDEX. CIX Answers to Petitions, 3G8 — To be prayed for und liuw, 350 — They do not alter procedure, 308 — Tlioy must be discussed and disposed of, 368 — Kespoiidcnt enters appearance and borrows process to prepare answers, 3G8 — Tlicir furm, 308 — May have pleas annexed, 308 — Under same regulations as to printing and boxing as petitions, 308 — After boxing six copies to be sent to other agent, 308 — Where certilicates of sanity are produced they must be printed and boxed, 309 — Kules as to productions with answers same as to petitions, 3.09 — A record not made up in summary cases, 309. Annuities, 269, 270 — To Poor Persons connected with Ward's Estate, 288. Appeal, to House of Lords, 4 — Factors pending, 12. Applications : Those after Appointment ; see Special Powers and Discharge — Points common to all, 370 — Service to be asked and made in cautioner, 370 — Details of original petition to be stated, 370 — Date of appointment to be given, 371 — Details of previous applications for sisecial powers, 371 — General detail of officer's management, 371 — Such applications not held incident to a depending cause, although appointment by Inner House, 371 — Competent to Lord Ordinary, 371 — Points in which diiference, 370 — For Appointment, 340 ; see Appointment — Incidental, Form of, 388. Appointment, Objects of, 2 — Party to be appointed. See Parties to Factorial Appointment — Expenses of; see Expenses — Interim, by Court, 64 — In consequence of proceedings under Pupils Protection Act, 60 — Ex proprio molu and without petition, 06 — By Lord Ordinary on Bills, 67 — Petitioners in regard to Common Law Appointment ; see Petitioners — Obtained on Mo- tion, 302 — To be moved as prayed for, 362 — Parties may then appear although no answers lodged, 362 — Even though not called as respondents, 362 — Coni- pearers crave to be sisted, 362 — Verbal opposition to the party suggested allowed, 362 — If all parties interested present and concur, another party may be appointed, 363 — Prayer must be alternative to admit of this, 363 — When new intimation and ser-sace necessary, 363 — In confirmations of Bill- Chamber appointments there was intimation and service of new, 303 — Where no answers or objection, appointment likely to be made, 304 — Avi- zandum maybe made, 304 — A remit to report may follow, 304 — This course recommended by many considerations, 304 — Where reporters die or decline, 364 — Diflference in First and Second Division iiractice, 305 — Miscellaneous cases of, 74 — Wherever necessity can be instructed, 74 — Where ques- tion as to whether estate already sequestrated, 74 — Purchaser resiling, 75 — For protection of interests of children nascituri, 75 — Where separate in- terests of liferent and foe, 75 — Where estate in hands of parties alleged to have destroyed deeds disposing of it, 70 — Where institixte rejected an entailed estate, 70 — AVhere a party abroad found in a question with land- lord entitled to an unexpired lease, 70 — Wliere statutory trust became extinct before it could be wound up, 77 — Where emoluments of situa- tion are assignable, 77 — Where a mortgage of turnpike or other tolls, 77 — But not where rates are only to be assessed, 78 — Applications for, 340 — The general form, 340 — Same in statutory applications, 340 — Presentation to Lord Ordinary has not changed address, 341 — 20 and 21 Vict., c. 56, 5 5, 341— Order of Court of 21st November 1857, 341— Petitions, &c., must be marked for one of the Divisions of the Court, 341 — Boxing and printing, when necessary, 341 — Act of Sederunt of 11th December 1849, 341 — Act of Sederunt of 25th November 1857, 341 — When printing not absolutely necessary, 341 — When petitipns presented in vacation, 341 — Printed papers to be marked " Junior Lord Ordinary," 342 — Restrictions on time of presenting application, 344 — Act of Sederunt of 17th July 1764, 344 — Act of Sederunt of 5th June 1790, 344 — Act of Sederunt of 13th July 1844, 344 — Not to be presented after 25th February and 5th July, 344 — Act of Sederunt of 21st December 1765, 344 — Not to be presented on any of five days before Christmas, 344 — Do these regulations apply to appli- cations for factors? 344 — 20 and 21 Vict., c. 50, g 10, 344 — Special powers at, 222. Eecall of ; see Petitioners — Expenses of Recall ; see Expenses — ex INDEX. Statutory, party to be appointed ; see Parties to AppoiutiiiLiit — Expenses of; see Expenses — Petitioners for; see Petitioners. Appointment.^. Distinctive features of some fiictorial. 212, 292. .Vttestors, 337 — Justices of Pence and Aj^onts, 337 — Terms of attestation, 338 — Liabilities under ordinary form, 338 — How attestation enforced, 338 — .Vttestor's lieir liable, 338 — Name of writir and desij;nalif witnesses when not necessary, 338 — Attestation must not be sejuirate from bond, 338 — Attestor may be ohar;.,'fd summarily if attestation consent thereto, 338 — Act of Sederunt. 27th Decend)er 1709, 338— Partly in desuetude, 339. Auctor in rem suam. See Invi'ntories. Audits, Interim, 335, 370 — Petition the form, 37t>-^Parties entitleil to demand it, 370 — Narrativeof petition, 370 — Prayer, 370 — To whom remit to examine accounts made, 37(J — W'iien to Accountant-General, 37tj — When to Ac- countant in Bankruptcy. 370 — Aicountant-tJeneral can take remits gene- rally, 370 — Report to be allowed to be seen, 377 — Ubjeetiuns must be lodged, 377 — If no objections, avizandum either with or witlumt debate, 377 — If objections, answers to be lodged, 377 — Revisal thereafter, 377 — No record closed, 377 — After debate decision. 377 — Reclaiming, 377 — If Inner Houso case. Ordinary reports and they decide, 377 — Act of Sederunt of 11th July 1828, 377 — Points may be reserved for Court in report, 377 — How disposed of, 377 — New remit may be necessary, 377 — New rejKirt to be approved of, 377 — Reclaiming against api)roval, 377 — A judicial audit lU'Cessary although successor has discharged extra-juilicially, 378 — An Ordinary who had for- merly reported on accounts oftm gut remits instead of Junior Ordinary, 378--'\Vhere petition for audit presented to Inner House this still compe- tent, 378— Pupils Protection Act, ? 34, 378— Act of Sederunt of 22d De- cemitir 1838, 378 — Impossible to arrange for report of a particular Ordi- nary if petition presented to Junior Lord Ordinary, 378 — 20 and 21 Vict., c. 60, 378 — Form of a petition for, 388. Audit of accounts at termination of office ; see Recall — Annual, by Accountant- General, 323, 330, 388. B Paiiks, 172, 194, 202, 204, 322, 330. IJankruptcy Act, Regidations of, 204, 233. Bastards Estates, Factors on. See Factors on Intestate Estates ; and Illegi- timacy. Bill-Chamber Appointments, 14. Boml of Caution, Terms of; see Cautioner — Construction of, 301 — When anointment wmetinies made to acceptors, 131 — Sw to W clmlKiiged, 828 — Ilnw Accmintaiit- (TfUemrs ni)iM>iutiiuiil iiinl ilutics iilTcct cmitioiuirs, 828 — His no;;lfi't can- not libiTiitf ciiutioniT. 328 — On siinii' iiriuciidc tliiit ncKl" so avaihiMc, ."'Jit — AVlicrc npirial stipula- tions as to suprrvision tlu-y aro L-nforcid, 33() — Xono aiiiiiiltiMl in judicial cautionry, 331 — Acts lilntratin^' cautioner in (jucstions with tlio ap-nt do not affect othi-rs. 331 — Accountant-ticncral's acts could only avail in cjut-s- tiona with him, 331 — He is not competent to un act to lil>irato, 331. Cautioners penerully. 208 — OtliccTs have to tind caution, 2'J8 — Cautioner for oflicers dift'ennt from all other cautioners, 2'.(8 — No creditor in judicial cautionary tiMifjatioiis when they are undertaken, 298 — Kxcept in a rank- ing and sale, 2'.)8 — When creditor apjiears equities arise, 2'J8 — The Court nnidt accept of cautioner, 2tt5t — What ciiutiouer's qnalilicatioiis, 21t'J — There may he more than one, 2'J'J— Oflicers not accepted as cautioners for each other, 2W — Female cautioners, 800 — Until bond accepted by Court cautioner may resile, 300 — When ami how bond challengeable, 300 — As null, 300 — On minority and lesion, 300— Informalities, 300 — Forgery, 300 — Reduction necessary, 300 — In that way decree against ]>rincipal chal- lenged, 300 — Suspension and interdict competent, 300— When declarator of relief form to be emjiloyed, 3lH), 301 — In questions as to right to determine cuutioiuiry obligiition, 301 — Obligations of. 301 — For due and faithful management of prineijial, 301 — Under Acts of iSederunt, &c., 301 — Their endurance, 301 — Until ti^rmination of odlce, 301 — Septennial limitation inajiplicable, 301 — Factor's inventory a charge against cautioner, 302 — Future debts, 302— Interest, 302 — Liability of, to whom incurred, 302 — Only to tlios<^ in ti/ulo to count and reckon, and receive i)ayment, 302 — To the ward, 302 — T(j creditors of estate, 302 — Not to a debtor ]Miyiug by mistake to officer, 302 — Nor for advances on nnstaiiipi'd drafts, 302 — Nor to acceptors of officer's deeds, 303 — l'rincii)les of construction of obligations. 303 — Detennined by two leading cases. 303 — Eaton v. ( 'owan, 303 — Terms of the Ixjnd there, 303 — Factor got special ])owers, 303 — On bankruptcy had estate in his hands, 304 — In sequestration no claim by cautioners, 304 — Officer died, and cautioners i)etitioned for accounts. 304 — Otlicer's snc- oesaor appeared as contrailiclor, 304 — Questions raised after report on objec- tions and answers, 304 — These as to liability for prici' of heritage sold, and how interest to be calculated, 305— For extraordinary acts, even with special jiowers, cautioner liable, 305 — Cautioner founded on not being called in upjilication for special powers, 305 — Restoration of subject as sold a non (limmo, the remedy, 305 — Interest like produce, and presumed ex])ended as it arose, 3(t5 — No accumulations comjtetent, 305 — These argniments un- sound, 305 — Risk unlimited, 305 — Co-extensive with estate, 30(j — Cau- tioners liable for all acts f)f management, 300 — Or mismaiiag<'ment, 30(J— Or intromissions, 30G^P'ailure to invest an act of mal-administration, 30(') — Acconntfl to be stated 08 if estate duly lent out, 30G — Wiiole produce to bo estimated at five per cent., 300 — llardshij) of opposite decision to the ward, 300 — Cautioner should have ranked in sequestriilion of principal, 800 — When he went wrong, cautiom^r's duty to get recall, 300 — Kerr v. Rrem- ner, 307 — Terms of bond there, 807 — Obligation to obey Act of Sederunt ipiite specific enough, 3ll7 — Failure to do this admitted, 307 — Cautioner jiredeceased curator, 3U7 — On curator's death succi ssor ajipointed. 307 — (jount and reckoning against cautioner's re]>resenlatives. 3y House of Lords to Court of Session, 308 — Septennial limitation hild excludi d, 308 — O"efttion raised as to boinl covering intromih.xions of oflir-er beyon'l life f>f cautioner, 808 — Hut caution- er's death did not ij>to facto terminate obligation, 309 — Neglect of the peti- INDEX. CXlll tioners for curator did not avail cautioner, 310 — Th&t jus tertii in a question with the curator's successor, 310 — Or tlie ward's successor, 310 — Omission to control ofiicer by relatives or even by pursuer not available to cautioner, 310 — The officer not these parties' servant, 810 — No rij^lits or equities of cautioner injured by their neglect, 310— How taken bound, 311 — Coniunct and several liability, 311— Act of Sederunt, 13th Feb. 1730, 311— Relief retained by cautioners inter se, and against principal, 311 — On default of principal, cautioner's obligations to be fulfilled, 311 — Cannot be called, pre- vious to default, to consign, 311 — Accountant-general has only power to order consignation of a balance, 311 — Pupil's Protection Act, g 16, 311 — Mercantile Law (Scotland) Amendment Act (19 and 20 Vict., c. 60), 312 — Do '0_ 8 and 9 apply to judicial cautioners'? 312 — No discussion now needed under act, 312 — Discharge of one of several cautioners a discharge to all, 312 — Except where co-cautioner bankrupt, 312 — Act only applicable to obli- gations after its date, 312 — Where obligation to be defined by future Acts of Sederunt, 313 — What terms of bonds under Pupils Protection Act, 313 — Such of unknown extent, 313 — Except there be stipulation, that if alterations effected in principal's duties, cautioner free, 313 — Pupils Protection Act, 12 and 13 Vict., c. 51, 314 — Does not apply to all officers, 314 — Eetrospec- tive in its effects, 314— Questions between cautioners and obligees, 314 — Where cautioner's rights different from principal's, 314 — Indefinite pay- ments, how to be imputed, 314 — Liability for foreign funds, 314 — cautioner liable, though recovered by another title, 314 — Illegal payments, 315 — Where cautioner advances expenses to principal, he will get decree in his name, 315 — Where additional caution subsequently found by principal, 315 — Cautioner's liability only after date of bond, 315 — Other obligation com- petent if expressed, 315 — How cautionry determinable, 316 — Third parties not to be prejudiced, 316 — Timeous notice to be given, 31G — Cautioner may petition Court, 316^0r raise action, 316 — Not necessary to allege that principal vergens ad inopiam, 317 — How relief of cautioner afforded, 317 — Reduction of exoneration competent, 317 — New bond may be accepted on special application, 317 — Can joint minute be resorted to? 318 — Court will not interdict steps by cautioner to compel relief, 318 — Alleged counter- claims not a defence, 318 — Cautioner to be relieved of expenses, 318 — Where cautioner not entitled to determine obligation, 318 — Bonds of Guarantee Associations, 331 — Authorized by § 27 of Pupils Protection Act, 331 — The only cases of limited liability, 332 — Scarcely practicable, 332 — At least at commencement of office, 332 — Cases where application to limit made at entry on office refused, 332 — An application to limit caution, when new caution required pendente officio, under consideration by Court, 333 — Such obligations liable to periodical termination by non-payment of pre- miums, 333 — Special stipulations necessary in such bonds, 334 — Represen- tations to the cautioners will be then available, 334 — Where defalcations beyond amount in bond, how dividends by principal's estate applied, 334 — For burgh managers, 336 — Only those appointed to intromit find caution, 836 — Caution found to satisfaction of managers, not of Clerk of Court, 337 — It may be for a limited time, 337 — For statutory factors, 337 — Obligations more unfavourably construed than otherwise, 337 — For factors under § 164 of Bankruptcy Act, 19 and 20 Vict., c. 79, 337— Audit of accounts, 335— Interim audits may limit liability, 335 — Expenses of such, 335 — Annual audit by Accountant-General, 336 — His powers as to access to bank-accounts, 336 — Can cautioner get access thereto? 336. See Attestors. Children ; see Factor loco tutoris, and Curator bonis — Xascituri, appointment of factor for protection of interests of, 74 ; see Appointments, miscellaneous. Ckrk to the Process. See Process. Collation, does officer require special powers ? 268. Commission, what due to officer, 195 — When office gratuitous, 120. Common law ap]iointments. See Appointments. Compearer. See Petitioners and Respondents. ex IV INDEX. Completion uf title, 181, 260. Coinproini!»i', ofticcr's powors to, 17o, 270. Consent, want of wards, how sujiiilicd, 57. Ci.nsipnation, ail, 3L'G, 38;]. 8yj, 393, 894. Continpncy. quo.stions of, 388. Court, upiM)intiuent of interim factors by. See Factors. of Session, a court of eijuity, 4 — Succeeded to Privy Councira jurisdic- tion, 4. Creditors, trusts for, 26. Curator eds, 213 — Unless curators have never acted or accepted, 214 — Test of tliis giving up the curatorial inventories, 214 — A deed by a minor having curators, without their consi'nt, is only reducible, 214 — Equally with deed by minor without curators, 214 — Where minor in trade, 214 — Where minor represents hiinself as major, 215 — Where minor a notary or messenger, 216 — Where minor a writer, 215 — Wliere minor in army, 216 — Proof of money in rem rersum excludes objection, 215 — Or it.^ expenditure in necessaries, 215 — Onus KX. tiuii, 140 — In i>ari cam, with <|ii' .stiuii.s nl" juiisiliotiou ami tillf, 14() — ^Vlnri' iii>iNiiiitm(iit im'tunjutfiit, exjifusos f,'ivL'n to rcspoiuiciits, 141 — Wluii iiftitiontrt* will j,'nu'tiim'8, 141 — rrinrijilos of moosition regnrdrd, 186— On ijitestate estates under Paiikrnjit Act, 1S(i — Act n{ Sederunt, 26tli Nov. 1H67. 13r — DiflTerence in jielifions for such, 136 — Expenses connected with, 137 — Am to statutory appointnu-Jits, 140 — Powers of fltatut'iry fartf>rs, 232, 207 — Expenses, where enactments regard- ing them, regulated by acts, 140 — Oenrriilly not alTected by acts, 140 — A necessary jurisdiction. 140 — In futri rami, witli questions of jurisdiction and title, 140 — Where ap|>ointment incomjietenf, expenses given tf) respon- dents, 141 — When petitioners will get expenses, 141 — lender modification INDEX. CXVll sometiniea, 141 — rriiicipies of inodificatiuu, 141 — How compearers dealt with, 108, 141, 303 — Refusal of appointment on merits will be follojved by expenses, 141 — Euactni,ents of Companies Clauses Act as to expenses, 141 — How construed in decisions of Court of Session, 143 — Petitioner, in so far as he does not get a decree for expenses, is entitled to them out of estate, 143 — This principle also applicable to appointments at common law, 143 — Usual powers of, 232 — Special- powers of, 297 — Managers of burghs ; see Burghs — On trust-estates ; see Trust-Estates — On intestate estates ; see Intestate ; also Factors Statutory — On partnership estates ; see Partnership— Xoco absentis, 39 — Minority and insanity of no account where party absent, 39 — Who can get, 86 — Loco tutoris, 44— Act 1696, c. 8, 44 — Father's illegitimacy, 44 — Tutors nominated jointly, 44 — With a sine quo non, 44 — Pupil out of jurisdiction, 45 — Where pupil without means, 46 — Where English guardians, 47 — Where father bankrupt, or interests oppose, 48 — Judicial tutory extends to whole estate, 49 — Tutor for special subject, 49 — Lord Auchinleck's opinion, 49 — Party entitled to be, 114 — Competi- tion for party to succeed him, 97 — Where ward illegitimate, 50— Curator bonis ; see Curator bonis — With special powers at appointment, 222. Factorial appointments, parties to ; see Parties — Titles, &c. ; see Titles. Fee, where separate interests of, and liferent, 75. Feus, 258. , Forms of petitions, &c. ; see Appendix (separate Index). Funds and estate, payment and distribution of, 273 — Taxes and charges against revenue not of this character, 273 — Creditors can make special ap- plication, 273 — Provision of Act of Sederunt 1730, 273 — ^A superior to pay feu-duty, 274 — Agent for account, 274 — To provide an assistant to an in- capable clergyman, 274 — To pay the jus relictcs where an antenuptial con- tract lost, 27'4 — Claimants for aliment, 275 — Creditors in rem versum, '21b — Officer may apply, 275 — Extraordinary expenditure, 275 — Travelling ex- penses of incapable's brother sanctioned, 276 — No interest of ward or estate will be imperilled, 276 — To pay funds to English guardian of ward, 278 — Capital must always be retained in jurisdiction, 278 — Also accumulations of income, 279 — To pay over estate to claimant, 279 — Where a donatory by Crown, 280 — Where legal obligation, 280 — Where expenditure indis- pensably necessary in management, 280 — Erection of offices, 280 — Re- pairs, 280 — Fences, 281 — To borrow in order to defray charges, 281 — Charges to be sanctioned must be legitimate, 281 — To buy oif a challenge of legitimacy illegal, 281 — To allow incapable in his own name to appeal a case decided against him refused, 282. See Realization and Recovery. Furniture in ward's mansion-house, 288. a Guarantee associations, bonds of caution by, 331, 389. Guardians; see Factor and Curator — Acts, how they affect ward; see Realization. H Heritable estate, realization of. See Realization. Heritage, purchase of, 287. House of Lords, factor pending appeal to, 12 — Appeal to, competent, 4. Illegitimacy of father cause of appointment of factor loco lulvris, 44 — Of cura- tor bonis, 50, 63— Of the ward himself, 50. 82. Incapable. See Curator bonis. i CXVlll INDKX. Inoapiicity of trnstoc, 31. Intt-rior .Imlp!*, iij>i>oiiitmont8 by. See Sheriff. Intirost, wlun char^rabK', l'J2. Interim iipiMiiiitmfiit.s ; see Ap|W)infinent — Audit; see Atulit. Iiitrstatf estuti-8, fiutors on, 3G— Ul' lnustards, 3(>— 6 \Vill. IV.. c. 22 ; 3G— 19 and 20 Vict., c. 50; 86. Intimtition nnd service; see Enrolment— What to be prayed for, 106, 848, 370— Uow iimdc. 358— On the walls, 358 — In th.! Minute-luwk, 358 — Evidence thereof, 358 — Form of certiticate, 358 — Messengcr-at-urnis serves petition ami C(>])y-inti'rlocntor, 358 — How sfrvico made on party in Scot- land. 358 — Wlun; nsjHindiiit furfh thereof, 35H — Where tutors and curators called. 358 — Form of execution to be returned, 359 — Court of Session Act, 13 and 14 Vict., c. 36, § 20, does not apjily, 359 — Service on companies to whom § 137 of Companies Clauses Act (8 Vict., c. 17) applies, 35t< — Service on party to bo made the ward, 369 — Wliere he is alleged to be incapable, notliing but personal service accepted, 359 — In one case Sheriff to be present at service, 369 — Special report to be pot in such a case, 360 — Where service acceptenpil, 190 — Curator can benefit under minor's testament, 191 — How presumptions against oflicers redargued, 191 — Restriction on acquisition cea.ses with management, although accounts not settled, 191 — Objectionable di'cds only reducilde. 191 — No consent to minor's being co-obligaiit with officer available. I'.U — Officers cannot lend factorial funds to themselves, 191 — Retention of fumls sulijects in penalties of illegal loans. 191 — Or buy sulijects on which estate" has loans, without keeping it indnnuiif, 191 — Provisions of Acts of Sederunt, 192 — No office of profit to be lield by office r or his jiartner, 192 — Interest, 192 — Provisiem of Act of Seehrunt. 192 — The antir|uateth for and against estate-, 193 — Rates charged against factor. 194- — Priiieiples of nce-ounfing with bankers similar, 194 — Linbie for pre>lits where the'se greiiter. 195 — Introuii.'-sions elne' wlie-re- funds intromittcd with, themgh after ex jury eif office, 195 — Remuneratiem. 196 — Art of Sfdcrunf. 195 — A salary, 195 — In dincretion of Court, 195— Deci- sions, 195 — Nei bargain as te) remuneratiem bgal. 196 — Rales of eeimmissiem, INDEX. CXIX 196 — Remit to an accountant usual mode of fixing, 196 — There must be deducted commission allowed by factor to others, 19(3 — What the commis- sion is in full of, 196 — It covers all work by factor, 197 — Orliis partners, 197 — Outlays are allowed, 197 — Expenses of actions, &c. allowed as such, 197 — Outlays must be particularized, not slumped, 197 — Expenses in some cases given against factors personally, 197 — Penalties, 198 — Provisions of Act of Sederunt, 198 — The fact of contravention insures the infliction of the penalty as its inevitable consequence, 198 — Until a case established against officer, Court protect him. 199 — A minimum pecuniary penalty for not lodging ac- counts, 199 — Representatives of factor liable in such penalties, 200 — Re- moval in addition to the pecuniary penalties, 200 — If office expired, other punishment may be inflicted, 200 — Pupils Protection Act inflicts other penalties, 200. Investment of estates. See Realization. .Joint adventures, factors on, 41 — Appointments not made generally, 44, 66. Jurisdiction of Lord Ordinary and Sheriff under Bankruptcy Acts, 9 — In ad- vocations, 11 — Sheriff's common law powers, 12, 148 — Statutory, 5 — Of the Court of Session, 1, 6, 8, 10, 340— Of the House of Lords, 4. Justices of Peace. See Attestors. Leases, 183, 251. Letting of estate, 183 — Act of Sederunt gives certain powers, 183 — Recogni- tion of these in Pupils Protection Act, 183- — Irrespective of obligations to lease binding on officer, 184 — Common law powers, 184 — Rent, 184 — Lease on repayment of a loan in rem versum of ward, 184 — Shootings, 184 — Re- moviugs. 186 — Judicial factors on trust and entailed estates have more ex- tensive powers, 186. Liability of officer for expenses, 207. Liabilities, powers, and duties of factor. See Powers. Liferent and fee, appointment where separate interests of, 75. Litigation, factors pending; see Factors — Expenses of; see Actions. Lord Ordinary on Bills, appointments by, 11, 16, 22, 64, 67. Loans, 246 — Officers cannot lend to themselves, 191. Lord Ordinary. See Jurisdiction. Lunatic. See Cm-ator bonis. M Management, recall of ; see Recall — Petitioners for ; see Petitioner — Expenses of; see Expenses — Of Estate; see Realization. Managers of Burghs. See Burghs. Mandatories, when required, 93, 346. Marriage-contract trusts, 25, 28. Minor. See Curator bonin. Minority of party absent, 39. — Of curators nominate, 57. Minutes and answers, when to be lodged, 369 — Form of making supple- mentary statement, 369 — When to be printed and boxed, 369 — When to be answered, 369 — Useful at reclaiming or on report, 369 — Reports incom- petent on three last sederunt days, 369 — Order of Court of 13th Julv 1844, 369. Motion for appointment. See Appointment. Moveable property, realization of ; see Realization — Purchase of, 288. Multiplepoinding, factors in actions of. 14. i 2 CXX INUKX. N .\'(i.«c(/i//i. See Chiltlifn. Necessity, iipjxiintnunt where can be instructed. See Appointment. Ntmiinution of tutors. 44 -Curators, 50 -/« profpectu by n party afterwards iiirapiu, (il. Otith, reference to oflicer's, is it competent? 161, 206. Obligations of cautioner. See Cautioner. Orders bv Accountant-General and Accountant in Bankruptcy; see Reports. —Of Court made on 21.st Nov. 1867, 341— 13th July 1844, 344, 369. Parties to fuctoriul appointments who can petition ; see Petition — AVho will be appointed to common law otlice, 114 — Factors, &c., 114 — His qualifications, 114 — To statutory officers objections nearly the same as to officers at common law, 114 — An individual and not a company or firm to be appointed, 114 — Joint appointments not made generally, 114 — Objection on account of relationship arises in application for factors loco tutoris and curatuT bonis, 114 — Majority, and not twenty-tive years, must be passed by parties appointed factors loco tuloris and curators bonis, 115 — The other limitations imposed in n-f^ard to tutories-at-law disregarded, 116 • — Act 1474, c. 51, 115 — Females now ineligible, 116 — Where such ap- pointed, effect of miirriage, 115 — Marriage terminates a testamentary tu- tfiry notwithstanding declaration to contrary, 115 — Parties out of Scotland will nfit he apjxiinted or continued a.<* officers, IIG — Qualifications in respect of worldly circumstances and social and professional j)i>sition required, 117 — His usual avocations inquired into, 117 — Kven nem. con. a bankrujtt is ineligible, 117 — Wliat influence is given to presence of contradictors. 118 — In general cose agreement of parties given elTrct to, 118 — What of collusion, 118 — Wliose nominee preferred, 118 — A submission as to obtaining otlice illegal, 118 — Seque.stration of minor's person to prevent collusion, 119 — Agree- ment to give consideration to insure acccjilance illegal, 119 — It cannot be conditioni'd by minors that their curator shall be free from omissifms, 119 — Pnrstnrs of proceedings for removal allowed to nominate of new, 119 — Party furth of Scotland entitled to guardianship nominates preferaldy, 119 — Party in Scotland entitled to obtain service used not to be appointed by Cf>urt, 120 — English practice to same effect, 170 — Such are now np- pointrd, but must act gratuitously, 12(j — If such ajipointment made, condi- tion as to gratuitous office not im[iosed rr posi fucti). \'20 — .loint nomina- tions contrary to general jiractice, 121 — A brother of the nl>.s(ntr'(>'s nominee preferred to uncle's, 121 — Competition discourageil, 121 — \\'hnt effect given to a lunatic's individual jiredileetions and antijiathies, 121 — Trustees of a provision for a lunatic a]>|)ointeil ciirators bonis, 122 — Unusual for petitioner to ask his own aji|)oiulmfnt, 122 — Objection on score of adverse interest insnrmountable, 122 — As regards either petitioner or liis nominee, 122 — What an adverse interest, 123 — To enforce a false economy, 12.'J — When too absolute a control wouhl beeonferrerl, I'JX — Where it arises from relatioillinted, IXJjEX. CXXl 124 — Also his depute, 124 — Such appointments not made in England even ad interim, 124 — A peer there held disqualified, 124 — Ministers of religion generally ineligible, 125 — Although not disqualified for tutory-at-law, 125 — Some few exceptional cases, 125 — Dissenting clergy eligible, 125 — Or a clergyman of Established Church unbeneficed, 125 — Soldiers, 125 — Writers and other dependents on Court of Session, 12G — Act of Sederunt, 23d Novem- ,ber 1710, 120 — Advocates not included therein, 126 — Exclusion of act in de- suetude, 126 — Officers cannot make professional charges, 126 — Accountants often appointed, 126 — A farmer sometimes eligible, 127 — Non-residence an objection principally on score of expense, 127 — The professional advisers of parties interested are disqualified, 127 — Also parties who have acted as trustees in general case, 128 — Sometimes their thus acting a recommen- dation, 128 — A party appointed a trustee, but declining to act as such, in- eligible as factor, 128 — Whore a party already factor on a, pro indiviso shave of the joint property, 128 — Where two estates, but beneficiaries the same on both, same party appointed factor, 128 — Where no conflict of interest, one party may be guardian of several members of one family, 128 — Where Court refuse to act on suggestion of parties, 129 — They often remit to Sheriif or his Substitute, 129 — The clerk may suggest a factor, 129 — A remit made to one of the Lords of Council and Session, 129 — Where a cu- rator ad litem, Court have advantage of his opinion as to fitness of nominee, 129 — Creditors appointed to meet to name party to be factor, 130 — Ma- nagers of burghs, what qualifications for the oiiice, 130 — Appointment some- times made to acceptors, 131 — Sometimes a substitutionary appointment, 131 — Sometimes in favour of survivors, 131 — A majority sometimes de- clared a quorum, 131 — General rule in selection of parties, 132 — Undis- charged bankrupts ineligible, 132 — Is a declaration as to a quorum ne- cessary, 133 — Continued residence an element, 133 — Public spirit, 133 — Remit to Sheriflf sometimes made, 133 — Creditors sometimes appointed to meet and suggest party, 134. Partnership Estates, factors on, 40 — Joint adventures, 41 — Pro indiviso rights, 42 — Incorporation does not affect Court's powers, 43 — Distinctive features of factors on, 297 — Special powers to be got by factors on, 297. Payment of funds and estate. See Funds. Penalties, when imposed on officer, 198. See Inventories, &c. Petition for appointment, 345 — When not the form, 344 — In certain applications under Pupils Protection Act, 344 — Under Bankrupt Act (19 and 20 Vict., c. 79, § 159-162, 164, and 165), 344 — Where a conclusion for a factor in a summons, 345 — A note craving factor incompetent, 345— Act of Sederunt of 11th July 1828, 345— Form of, 345— Who can petition, 345— When tutor or curator ad litem to be appointed, 345— Mandatory to be sisted for ab- sentee, 345 — Petitioners to be fully designed, 345— Consenters to be design- ed, 345 — Statement of circumstances to be full, 345 — Want of specification ground for refusal, 346 —Particulars to be set forth, 346 — What to be set forth in a statutory application, 346 — In one under § 164 of Bankrupt Act, 347 — At end of statement a party suggested for appointment, 347 — Must be designed fully, 347 — Connection with estate or ward to be stated, 347 — When more than one nominee, 347 — If nominee do not accept, 348 — In what cases Court appoint meeting to suggest a party for ofBce, 348 — No suggestion allowed in petitions under g 164 of Bankrupt Act, 348— The prayer, 348 — Court will not go beyond it, 348 — Intimation on the walls and in Minute-book, 348— Service to be asked, 349 — Eespondeuts to be designed, 349 — All interested to be called, 349 — Though furth of Scotland, 349 — The party to whom guardian to be appointed to be called, 349 — More especially if alleged to be incapable, 349 — Trustees alleged to have de- clined must be called, 349 — Validity of appointment involved, 349 — Cases where intimation unnecessary, 350 — Order fdr answers to be craved, 350 — Time for answers, 350 — Should be specified, 350 — Time in Act of Sederunt uf 25th November 1857. 351— Time in Act of Sederunt of lltli Julv 1828. ex XI I INI>EX. 851— In practice eight ilaya usual period. 851 — Uuless sjHcified suinu time applies to resjHtmleiits ftirtli of Scotland, 351 — Iiitiinatiini arnl service not to be dispensed witli, 852— Wliiit nn onler for answers liy implication, 862 — Answers sometimes ordered iiy a day lixefl, 852 — Se(jutstration, where necessary, next nshd in prayer, 352- Appointment tht n emved, 533 — Alternative prayer for any ofln-r party to be insrrted, 353 — If ujipoint- nieiit i>endinfr inducitr wanted, it must be j>rayed for, 353 — Dillerent wuyri of apjMiinting ad interim in the two Pivisious, 853 — Wiiat sjtecial powers can be got at aj>i>oinlment to be asked, 363 — For a statutory factor " usual jxiwers" not to be asked. 358 — Statutory jmwersonly, 854 — Safer to have u broad than a narrow praytr, 354 — Amendments on it to be made before intimation. 854 — What amendments can b(! afterwards made without new intimation. 354— Api>ointments not to be combined in one ^tetitiou, 356— Only exception a petition for a t'aitnr loco tutoris ami curator boni» to minors of the same family. 350 — Superseding or refusing. 3i»7 — When this will bo done, 367 — Conditions precident to any movement in cause, 868 — " Decern" used in refusal, 368 — Do they fall asleep? 368 — Answers to; see Answers — Productions with ; see Productions — Sisting petitioners ; see Sisting — Petition the form of incidental applications, 388. Petitioners, the, 79 — For factors, &c., 79 — For appointments at common law, 79 — The interest necessary, 79— Minors for curators lionix to themselves, 79— Is curator ad litem necessary ? 79 — Acts 1555. c. 35, and 1(572. c. 2, 80 — Court's delegate, 80 incapable, can he petition for ollicer. 80— Nearest relatives, 81 — Paternal and maternal, 81 — A single relative, 81 — Next of kin, 81 - Other tutors on failure nf.tine fjiio non. 81 — Tutor or curator lospeeial subject. 81 — A tutor or curator aJa/Zerawi litein,iil — Litigating(leblor,81 —English guardians, 81 — Minor's father and tutor having coiitlicting interest, 81 — Minor's father bankrupt, 82 — Where minor illegitimate who can jietitiou, 82 — A committee of management of heritors where pupil a pauper, 82 — Trustees having minor as creditor, 82 — Party entitled to bo tutor-at-law. 82 — Curator bonit, who can get, 82— Nearest male agnate where jiarty inro/jax, 82 — Wife and children, 83 — Hrother, although minor, 83 -Sistirs. 83— Hrothers-in- law and sisters-in-law, 83 — Mother of tiw next of kin. 83 — Next of kin, 83 — Ileir-at-law and of entail, 83 — Friends named as ginirdians. 83 — Trustees of tht,' father, 83 — Trustees having lunatic as creditor, 83— llr-ri- tors of parish, 84 — Custodier, 84 — Lodging-house keeper. 84 — Family law- agent, 84 — Lord Advocate may jietition after reiKirt of Lunacy Board, or Accountant of Court of Session, 84-20 and 21 Vict., c. 71, 84- Who can get factors on intestate estates, 84 Law-agent.s, 84 — House-agents, 84 — Common agent in ranking and sale, 85 — Creditors, 86 — Trustee in a se- questration, 85— Aef 1695, c. 24, 85, 19 and 20 Vicf ., c. 79,86— Who can get factor loro abtentia, 86 - (^reditors of parties dead or absent, 86 - 1695. c. 24, 86 -Creditors of parties alive, 87 Creditors of a corporation, 87— ('ollec- tor f)f taxes, 87— A factor's cautioner, 87 — Where diligence, sequestration will be made, 88 -Trust creditors, 88 — Either onerous or beneficiary, 88 — Legatees, 88— Trustees, 89 A tnist<'<>'s widow and executrix, 89 — Tes- tator's successor in heritage or moveables, 89 ~ Lord Advocate, 89— Com- missioners of Su]i|ilv, 89 -Justices of peace, 89— Magistrates, 89 — Incor- porated trad.s of a burgh, 90— Presi)yteries, 90— Act li;83, c. i\, 90- Trus- tees or other debtors having creditors, anHi', 91- Maybe not petition"? 91 — Fiars, 91 — Conditional institute or sui)stitute, 91 Widnw a.id ciii!dren,91 — Parties to antenuptial contracts, 92 - Curator ad liirm to wife petitioning, 92 — Beneficiaries >inder such deeds, 92 — Wife vindicating rights against husband, 92 — Litigants generally, 92 Claimant in multiple|Miinding, 92 — Even wliere comjietition only in prosiMct, 92 — Parties to »ubn)is«*ions, 92 — Seller. 93 — Partner of a dis- solved firm. 98— Of an existing firm, 93 — In an adventure. 93 — I'ro indirino pro]'rietorH, 93 — Shareholdersof a company incorporated or not, 93 — Directors, INDEX. CXXlll 93 — Relations of an absentee, 93 — Kis brother, 93 — Nearest relative iu Scot- land, 93 — If fiirth of Scotland, petitioner must have mandatory, 93 — For mana- gers of burghs, 94 — Party demanding infeftment, 94 — City and town- clerks, 94 — Party to a ces-io bonorum, 94— Party found to have been illegally elected magistrates, &c., 94 — Burgesses. 94 — Guildbrothers, 94 — Members of trades, 94 — Parties complaining of illegal election, 94 — Inhabitants. 95 — Duly qualified and registered voter, 95 — Crediturs, 95 — For recall of a common-law appointment, with a view to the appointment of a successor, 95 — Akin to action of removing suspect tutors, as mode of obtaining re- straint or removal, 96 — That actio jjopularis, 96 — Cautioner of factor, 96 — Those who have title to apply originally, 96^Where factor insolvent, 96 — Accountant-General's rights, 96— A curator bonis or factor loco tuloris can petition for judicial factor to succeed them, 97 — OtRcer can petition for re- call and for successor, 97 — Officer's executors, 97 — Same principles apply to successors iu the management of burghs, 98 — Where endurance of former appointment limited, who can petition for continuance, &c., 99 — The officers, 99— Original petitioners, 99—20 and 21 Vict., c. 56 (25th August 1857), 99 — Tliat statute virtually abolished applications for recall, 99— ^Recall of the factorial or other judicial management when its purposes served, 100 — How this differs from recall of appointment, 100 — It can be sought by far fewer parties, 100— Party seeking recall of factory must be legal guardian of the party, or owner of property under factory, 100 — Or have other legal title, 100 — Court must be satisfied of full protection to personal property, or interest in future, 100 — This the case particularly where sequestration, 100 — This kind of recall to be sought by those who ought to have been made respondents to petition for factory, 100— Factor himself can petition, 101 — His representatives after his death, 101 — Party who had completed title by service to ijroperty, 102 -Crown where ultima hoRrea, 102 — Partial recall competent to same parties, 102 -It often assumes form of petition for special powers, 102 —For special powers, 102 — The custody of the ward thus dealt with, 102 — Officer has title to make application, 103 — So also maternal grandmother and agnates, 103 — Creditors may thus apply, 103 — Other parties interested, 103 — Actions at common law against ward or factor, 103— That another and preferable mode, 103 -Fictions of English law not recognised in Scotland, 103 — Court of Session alone grant special powers, 103— Sheritfs competent to such actions, 103— Act 20 and 21 Vict., c. 56, 104 — Distinctive features of two kinds of recall will cease, 104 -How will sequestrations be recalled? 104— AVho to be called as re- spondents, 105 — Petitioners for statutory appointments, 109 — General prin- ciples, 109 — Decisions as to factories, 110 — Companies Clauses (Scotland) Act, 1845, 110 — To whom benefits of that act ccmfined, 110 — Personal ex- ception pleadable against statutory title, 111 — Shareholders, when entitled to petition. 111 — When virtually creditors. 111 — Not such in general case where no profits. 111 — Creditors of companies may compear in application by mortgagees, &c., 112 — In what terms Court will appoint, 112 — Can they appoint for behoof of parties other than petitioners? 113 — Parties to ap- pointment for factors under Bankrupt Act, 113— Powers of statutory factors 232, 297. Powers, duties, and liabiUtiea of factors, &c., 144 — Of the subject generally, 144 — Factor not proprietor, only protector, 144 — Acts as representative of owner, 144 — Usual and special powers distinguished, 144 — Curators bonis are not guardians in the same sense as factors loco tutorin. 144 — Where curator to a party incapax, 144 — Difference where party under curatory capax, 145 — Powers similar to those of a curator to a minor at common law, 145 — Wherein these powers are similar, and differ from those of a judicial factor, 145 — Distinguishing element necessity of minor "s consent, 145 — Powers of a judicial factor. 145 — He is not the representative of the proprietor, 145 — To assume and act in that po.sition requires special powers, 145 — Previous sequestration gives him no rights above CXXIV INDEX. Others. 146— Act 21 aud 22 Vict., c. 76, § 21 (Titlea to Lund Act),' US- Questions under it, 146 — Officers to whom it applies, 148 — Powers termi- nate with office, 149 — Liiihility to iiccouiit still continues, 14y — Usual or ordinary powers, duties, aud liabilities, 161 — Acts of Sederunt in 1690, 1708, 1717, and 1730, 161— Act 12 aud 13 Vict., c. 51, Pupils Protection Act, passed in 1849, 151 — Act does not include all factors, 151 — Object of apjxnntment aud primary duty, 151 — For behoof of all having interest, 181 — Expenses of obtainin-; apjxiiutmeut to be paid from estate, 151 — Duties begin on aud after finding caution, 151 — Where no caution required, acceptance of office determines commencement of duties, 151 — The extract- decree of apiH)intment to be demanded by all debtors before jiaying, 151 — Creditors cannot refuse payment by officer, 151.' — lUlief where false re- presentations as to caution being found, and acceptance, 152 — Liability of vitious intromitters with estate, 152 — Enactments of Pupils Protection Act as to caution, 152 — Heritable creditors' rights aud remeilies not affected, 152 — Even although efl'ect should be to terminate factorial management, 153 — When offices terminate and e,\pire, 153 — Where management put an end to factor cannot act, 153 — Liable in damages, 153 — Heir of factor responsible, 153 — Though management terminated factory subsists', 163 — Factor responsible meanwhile until discharge, 154 — Provisions of Pupils Protection Act, 154 — Analysis of the duties, powers, and liabilities im- posed by the Acts of Sederunt, 154 — Miscellaneous powers, &c., 205 — Can- not waive legal nullity, 2U5^Custody of writs, 205 — Exhibition, 205 — Minor's consent not necessary to recover writs, 200 — Reference to officer's oath, is it competent ■? 206 — Omission of competent pleas, 206 — Minor non tenetur placitare super hercditatem jmlernam, 206 — The defence of no funds for debt, 206 — Officer's liability for expenses, 207 — Diflerence when hu takes up instead of instituting action. 207 — A decree qtia factor not a personal one, 207 — Except subsidiarie, 207 — Rights incident to factor's relief, 207 — Officer not responsible fur custody of person, 208 — He has title to bring matter before Court, 208 — May get power to remedy mutters, 208 — Can then institute proceedings in foreign Courts, 208 — International comity as regards a minor's person, 208 — Circumstances may justify interference with- out special jxAvers, 209 — Expenses of such proceedings, 2(t9 — How officers validly called into Court, 2(J9 — Can be sued by wards, 210 — Has the qtiad- rienniiim utile any effect? 210 — .\ct 1696, c. 9, 210 — Does any short prescrip- tion operate against challenges? 2UJ — Mwa has been sustained, 211 — What protection against distant challenges, 211 — May employ agents, 211 — Expenses of appointment to be jiaid, 211. Powers, duties, anil liabilities,si)ecial or extraordinary, 234— .\t appointment, 222 — Not granted at ai)poiutment generally, 235 — Court of Session alone grant, 235 — How officer's responsibility affected, 235 — Merely oi>erate as publication, 285 — Preserve materialsfor vindication of acts, 236 — 'J'ransai'tionsauthorized open to challenge, 23(i — Sometimes reservationsof rigiits, 23('>— Court refuse to declare j)roceeilingH valid, 237 — No implication as to goodness of title, 237 — ApiKuntments were matters of form, '237 — Explaiuitiou of many ordinary powers being specially conferred, 237 — Requirements of foreign law, 287 — Court jM-rfectly irres]) — Majority of wanl, 25G— Manor and mansion-houso. 250 — (umral power, 25U Corn-null, 25G - Wlicn- pro hxiifi^o property, 25''>— Shootinjjs, 257 — Feus. 258 — Not eucnuraKed by Court, 258 — Gnat responsibility, 258 — Where in iiniphment of previous obligation, 268 — Where feuing begun by wanl, 268 Where estate of little value for other purposes, 268 Realiza- tion of; see Realization. Pupil ; SCO Factor loco lutorU — Where on Poor's Roll, 82 — Where without pro- perty, 4(3. Pupils Protection Act, regulations of, 200 — These in adilition to tliose of Acta of Sederunt, 200 — Rental-list and inventory to be produced to Accountant- Goneral, 2(X) — Accounts and vouchers to be examined annually, 200 — Ac- countant-General's power of prorogation, 200 — Court have extended time beyon made on heritable se- curity, 108 — Or Government stock, 170 — Railway deb( iitures not apjimved ,,f^ 17() — Loans on house-property questionable, 170 — Where security inade- quate officer liable, 170-— So also where funds employed in numufactures, 170 — Prin<'iples same as regards trtistees, 171 — Investment*, when to be taken in his own or wanl's name, 171 — Purchase of heritage not within ordi- nary jKiwers, 171 — In siMcial cases rules have been relaxed. 171 — Ranking funds, 172 — If bank in good credit when rleposit made, oflicer has no lia- bility, 172 — Factor in multijilr poinding has to consign. 172— Prf)vision8 of Pupils Protectittn Art, 172 — Restriction made by it to chartered banks, 172 — Twenty per cent, pr-nalty, 172 — Winn dismissal follows breach, 17'J — What the rf)nsequence of lodging funds in an unchartered bank, 172 — Analogous provision in Lands Clauses Act, IT-i — Heritable estate, 173 — PrfKluce to be collected. 173 — Rurdens to be paid, 173 — Rut no other deductions, 173 — Has the iKwilion and liabilities of landlord, 173 — As n- INDEX. CXXVll gards claims of damage, 173 — Can remove tenants, 173 — Can act as su- perior, 174 — Restriction or discharge of the liabilities of estate to be ob- tained, 174 — Cautionary obligations, 174 — Mercantile concerns, 174 — Joint- stock concerns, 174 — To exclude claims and to account, 174 — Compro- mises, 175 — When submissions within ordinary powers, 175 — Difference in this respect between powers of judicial factors and other officers, 175 — When subsequent reduction competent, 175 — Suits compromised, 176 — Claims paid under arrangement, 177 — Renunciation and revocation, 178 — Where locus pcEnitentice, 178 — Dona,tioiisinfervirum€tuzore?n,n8 — Election be- tween conventional and legal provisions, 178 — Creditors may make renun- ciation inevitable, 178 — How the guardian's acts affect ward, 178 — Is pas- sive title incurred"? 178 — Ward's disclamation or renunciation, 178 — Resti- tution a condition of this, 179 — Liability quantitm lucrati/s, 179 — Factor cannot alter order of succession by acts of management, 179 — Distinction where operative acts comi^ulsory, 180 — How executor of ward makes up a title to heritage, 181 — Where aliment to be provided, 181 — Actions against those liable must be raised, 182 — Is an offer to entertain a good de- fence against a judicial guardian ? 182 — If a good claim on this head against estate it must be settled, 182 — Income the limit of aliment, 182 — Curators could infringe capital to put minor to trade, 182 — Court in use to supple- ment ordinary powers as regards provision of aliment, 182— Annuities un- der Pupils Protection Act, 183 — To authorize loans with this view, 183 — Loans without special powers sustained, where in rem versum of pupil, 183. Recall, petitions for ; see Petitioners — Pi'ocedure in exoneration and recall of the appointment and management, 379 — A petition with prayer for recall not competent before Junior Lord Ordinary, 379 — 20 and 21 Vict., c. 56, 379 — Where by expiry office recall unnecessary, exoneration only sought, 99, 104, 379 — Exoneration and discharge competent to Junior Lord Ordi- nary, 379 — Procedure therein, 379 — Where recall cannot be dispensed with, 379 — Recall of the appointment, 379 — Distinctive peculiarity, 379 — Prayer of petition, 380 — Successor must be asked after recall and before audit, 380 — Not necessary to ask successor in Outer House, 380 — Inner House have cumulative jurisdiction with Junior Lord Ordinary, 380 — Successor must be got to act as contradictor in audit, 380 — After appointment he sists him- self, 380 — Where former officer had special powers but unused, special prayer for them to successor competent, 380 — Grounds for this kind of recall, 381 — How instructed by a factor under ^164 of the Bankruptcy Act, 381 — Act of Sederunt of 25th Nov. 1857 ordains him to obtain report of Accountant in Bankruptcy, 381 — Investigation, if necessary, by remit and report, 381 — Where new appointment will not follow on recall, 381 — If continuance of incapacity not proved, 381 — How examination of accounts proceeds, 381 — If balance against officer, decree to be taken by successor against him and cautioner, 381 — Prayer for discharge to be superseded until payment, 382 — On payment, factor or cautioner will get discharge, 382 — Balance shoxdd not be paid by officer until expenses given, 382 — Recall of the management, 382 — Successor only required where a change of officer, 382 — Procedure in these cases, 382 — Parties who can petition for this recall, 383 — Statement in petition, 383 — Prayer, 383— Where provision to be made for discharge on consignation, 383 — A proper contradictor must be called, 383 — Onus on petitioner as to grounds of recall, 383 — Majority to be proved by certificates, 384 — Removal of incapacity to be substantiated, 384 — Where recovery of an incurable lunatic alleged, 384 — Procedure in audit, 384 — Where intromis- sions after exi)iry of office, 384 — Officer must account until divestiture, 384 — Judicial audit unnecessary in some cases, 384 — Where so. Court do not discharge, but only order delivery of bond, 384 — Petition only to pray for such delivery, 385 — Judicial audit dispensed with where absentee examines accounts, 385 — Where incapable on recovery does so, 385 — Where commis- sioner of absentee doi-s so, 385 — Doubtful whether Court will do so, where discharge previous to expiry of quadriennium ulile, 385 — Notwithstanding CXXVlll INDKX. extrajudiciul Jischarj^e, Court can insist on judicial audit, 386— Tliey will do so where attempt at undue advantage of ward or Court suspected, 38t) — Court not so jealous of extrajudicial settlements between oflicer and ward's representatives, 387 — Where a discharge only of accounts for a period, juilicial audit t/uoaJ ultra granted, 387 — All parties interested must concur, 887 — Disehuri^e by a successor in office does not render judicial audit un- necessary, 387 — But where successor a trustee under Hanknipt Act, judi- cial audit dispensed with, 387 — A count and reckoning as to estate con- tingent to jK'tition if in Inner House, 388 — Where both the action and peti- tion before Junior Lord Ordinary, they can be conjoined, 388 — But wliera action before another Lord Ordinary, questions as to procedure, 888. Receiver. See English Law. Reclaiming notes, 342 — 20 and 21 Vict., cap. 56, § 6, 842 — Who can reclaim, 342 — Time for reclaiming, 343. Recovery of estate, 155 — In Scothind, 155 — Delegation incompetent, 156^ Sums in decrees, 150 — Where debtors insolvent, loCi — For what diligence officer liable, 15ti — How negligence rebutteil, 15ti — Liability begins on enter- ing in office and for estate at that time, 15tj — Must recover price of subjecta previously sold, 156 — Onus probaiidi as regards challenges, 156 — Personal exceptions against factors, 15G — Presumptions as to the insolvency of the estate's debtors, 157 — Etl'ects of intervening insolvency, 157 — Must call predecessors in management to account, 157 — How their liability ascer- tained, 158 — Where no intromissions alleged, 158 — How expenses nocea- sarily incurred dealt with, 158 — Expenses, when given against factor per- sonally, 158 — No special powers reciuired to raise actions necessary for re- covery of estate. 158 — Or to go on with those rai.sed by predecessor in man- agement, 15'J — Miiltijilepoinding and exoneration, 100 — Keductions of pre- decessors' acts, 100 — Challenges of deeds to ward's lesion, 100 — Conipensa tion under Lands Clauses Act (8 Vict., cap, 19), 100 — A factor loco tutoris cannot feu under 11 and 12 Vict., cap. 30, 100 — Rutherfurd Act, 100 — Re- call of arrestments, 101 — Ranking and sale, 101 — Expeding confirmation, 161 — Reference to othcer's oath when competent, 101 — .Vtlidavits under Rutherfurd Act, 11 and 12 Vict., cap. 30, 101 — .MHdavits on bankrupt estates, 101 — To act as creditors under bankrupt statute, 101 — Originally no way f>f getting special powers but by action. 101 — Alteration in form to petition has not alVeeted factor's ordinary powers to rai.se actions, 101 — Pe- titions for such powers as if special have been granted, 101 — Actions with conclusions in favour of factor can be raised by jiarties interested, 162 — Furth of Scotland, 103 — Must not only bring iunds to, but keep them in Scotland, 103 — ^Iiist take stejis necessary by foreign law, 103 — So far as Scotch law concerned, this within ordinary powers, 101 — Delegation maybe necessary though otherwise incompetent, 103 — Actions may be raised, 103 — Letters of administration, 10:5 — Act 21 and 22 Vict., ( a]). 50, Confirma- tion and Probiite Act. 1858, 104 — Confirmation, 104 — Where a ward, his name to becial i>owers, 160 — Within usual jwwors to grant deeds even of alienation, where such cjin be demanded as matter of right, 10(). See Funds. RefuHing petition, when and how (hme. 307 — " I)r'C8. Relief, factor's, against estate, 207. Remit. See Prrx^edure. Kemoving tenants, no special power required for, 186. Remuneration. 195 — When office gratuitous, 120. INDEX. CXXIX Rentals. See Iiiveutories, &c. Jlenunciation. Kee Kealization. Reports : — By Oriliuary to Inner House, 343 — Where doubt as to power to re- claim, course to be taken, 343 — Order of 13th July 1844, 343 — Reports in- competent on three last days of session, 344 — By the Accountant-General and the Accountant in Bankruptcy, 391 — Pupils Protection Act, 391 — Proce- dure. 391 — Parties thus brought into Court, respondents or defenders, 391 — When intimation by Court necessary, 891 — Over and above "what jJ 20 provides for the Accountant giving, 391 — Objections by factor due within forty-eight hour.s of notice, 391 — Service on cautioner ordered, 391 — Where report to Lord Ordinary, can he report to Inner House? 392 — Lord Ordi- nary's powers under ? 19, 932 — Factor must state intention to reclaim at disposal by Ordinary, otherwise review excluded, 392 — What if Lord Ordi- nary dispose of case at chambers ? 393 — Suspension or reduction compe- tent, 393 — Objections may be to competency of order, 393 — What such, 393 — Accountant cannot order consignation of a balance, 393 — That limit of his power, 393 — Court can order consignation without such distinction. 394 — Accountant in Bankruptcy's powers similar, 394 — Reports to Inner House now transferred to Junior Lord Ordinary, 394 — Accountant in Bank- ruptcy can go to Bill Chamber during session, 394 — 20 and 21 Vict., cap. 66, 394 — This act does not repeal Accountant-General's power to report to Lord Ordinary on Bills in vacation, under 12 and 13 Vict., cap. 51, 395 — Ordinary in vacation cannot deal but with petitions, 396 — Only such as are enrolled or brought before himself, 396 — Junior Lord Ordinary has no power to delegate, 396 — He may report to Court, and they can delegate, 396 — In this way all doubts as to Ordinary on the Bills' powers removable. 396 — Form of getting time to lodge objections prorogated, 388. Respondents, who to be called as, 105, 349 — Validity of appointment involved, 105, 349 — On whom service to be prayed for, 106, 349 — Court often directs service ex propria motu, 106 — Object of calling parties, 106 — When factor's cautioner should be called, 106, 370 — When ward's successors, 106 — Com- pearers need not have a strictly legal title, 107 — Proceedings public, 107 — This why intimation on walls and in Minute-book, 107 — Pupils Protection Act, sections 8 and 34, 107 — Check imposed by award of expenses, 108, 141 — Compearers if successful get expenses, 108 — Principles include parties to apply for manager of burghs, 108 — What service necessary, 108 — Com- pearers, 108, 363 — Can Lord Advocate compear, 109. See Appointment and Parties. Restriction of liabilities. See Realization. Revocation. See Realization. s Sales of heritage, 242 — Of personal property, 168. Salary. See Commission. Sederunt, Acts of. See Acts of Sederunt. Sequestration by Court, where to be applied for, 2. Sequestrated estates, factors on, 9, 10 — Appointment where question as to whether estate already sequestrated under Bankrupt Acts, 74. Service. See Intimation. Sheriffs, appointments by, 5, 12, 148. Sheriif-Clerk, appointment of, as factor, 124. Sisting petitioners, 370 — Is it competent where instance fails ? 370 — Deci- sions seem to negative competency, 370 — Competent where petition for spe- cial powers, 370, 375 — Or in audit of predecessor's accounts, 380. Special powers. See Powers Statutory factors, 232, 297; see Factors— Petitioners fox; see Petitioners. Appointment where statutory trust became extinct before wound up, 77. CXXX INDEX. Subraission, ad hune effectum, ponding litigation, 74 — Factor^ powers to enter into, 175, 270. Snootseion, order of, cannot be 'affected by acts of management, 179. Summons, when factor to be concluded for in, 845. Superseding applications, when and how done, 3G7. Survivor's jKiwers if more than one curiitor, 5(5. T Title to estate, completion of by officer. 260 — By executor of ward, 181. Titles, discharges, and otlier deeds, 1(14. lOtJ, 26'.t — Power to grant given ex- pre.'^sly, 269 — C)r by imjdication, 26'J — In order to complete vius.« — To enter and a<'knowiedge iicritable creditors, 259 — General power, 259 — Oomjiletion of title to estate. 2ij(> — Where to be done in ward's name, 2(>0 — Where in factor's name, 2f)0 — Where ]irevious sequestration, 2r>0 — Where predecessor in factorial appointment had completed titles, 2(50 — 21 and 22 Vict., cap. 76 (Titles to Land Act), 260, 264 — To servo pupil, 261 — Responsibilities connected with representation, 261 — Service of Heirs Act, 10 and 11 Vict., cap. 47, 261 — When ward heir of entail, 261 — As heir-portioner, 261 — Where interests of others to be served, condition as to ex|x^nses, 261 — In order to implement a decree of division, 262 — Where entry demanrled, 262 — In order to the comidetion of a transaction, 262 — Can i)urchaser decline title '.•• 262 — Where heritable debtor wishes to pay, 262 — In onler to implement an obligation by ward, 262 — Or his ances- tf)r, 263 — In order to grant lease, 263 — Where jiroperty pro indhiso, 263 — Factors hco tutoris nnd curators 6onj> get power more easily, 263 — Where se- questration, 263 — l^ower refused where personal title sufficient, 263 — It is sufficient for all purposes of management, 263 — Blunders where responsi- bility rests, 263 — Where a factor took title in his own name and not in ward's, 263 — How title to bo made up, 264 — Declaratory adjudication, 264 — Constitution where necessary, 264-— Act 10 and 11 Vict., cap. 48, 264 — Creditor in obligation by ward may be allowed to adjudge, 265 — The gran- tec has to judge of powers of factor and sufficiency of title, 265 — A feudal progress not always required, 265 — Where necessary powers to comjileto progress granted, 26 collation, 268 — Where one guardian and too many wards, a conflict of interest, 268 — Election between legal rights and provisions, 268 — To raise funds for ward's maintenance, 269— I'ur- chiute fif annuities, 269 — Must be from a government savings bank or a Scotch company, 270 Pupiln Protection Act, {> 7. 270 — To affect compro- mises, 270— W'ith debtors, 270 — Of suits, 271 — Where sale of heritage in- volved, 271 — Where security for price taken, 271 — To limit liability in joint-stink comjianies, 272 — In order to pay creditors, 272 — To avoid litiga- tion, 272 — Not to compromise questions of xialiis, 273. Truttt-extateR, fact/>rs