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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Report of Accountant of Court in Rannie's Factory [1867] ScotLR 3_140 (22 December 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0140.html Cite as: [1867] ScotLR 3_140, [1867] SLR 3_140 |
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Page: 140↓
Held inexpedient, but not incompetent, to appoint the cautioner for a former factor to be the factor loco tutoris to a pupil.
R. W. Rannie was, on 2d November 1865, appointed to be factor loco tutoris to D. W. Rannie, and having found caution, he entered on the duties of his office. His cautioner was David Mackenzie, solicitor, Perth. R. W. Rannie died on 19th Feb. 1865, and David Mackenzie was, on 11th December 1866, appointed his successor, on the application of the nearest relatives on both sides of the pupil. In the petition for his appointment it had not been noticed that he had been cautioner for the former factor. Upon 12th November 1866 the Accountant of Court (under the Pupils' Protection Act, 12 and 13 Vict., cap. 51) reported the fact to the Junior Lord Ordinary for direction, or for such other action as his Lordship might deem proper, stating that it was the duty of the succeeding factor, in cases like the one in hand, to see that his predecessor's actings, intromissions, and management had been correct and satisfactory, and that it seemed proper that the person discharging the preceding factor's representatives and cautioner should have no beneficial interest in the discharge.
Upon 14th December 1866 the nearest relatives of the pupil on both sides, having been informed of the report by the Accountant, represented that they had the most perfect confidence in Mr Mackenzie, who, as brother-in-law of the pupil's father, had the fullest knowledge of his affairs, and who, in respect of the former factor's (his father-in-law) inability, had actually managed the estate for him, and had so acquired a complete knowledge of it. The accounts of the late factor had been examined by the Accountant of Court and found correct, and the representatives of the late factor did not ask for a discharge (and were willing to give in a minute to that effect) till the pupil came of age, upon receiving a receipt for the amount brought out by the Accountant upon his accounts. These last mentioned facts were stated in answers for Mr Mackenzie, which he was allowed to give in, in reply to the Accountant's report.
After considering the report and answers and hearing parties, the Lord Ordinary (Mure) recalled Mackenzie's appointment, and appointed another factor.
Mackenzie reclaimed, and the nearest relatives aforesaid conjoined themselves with him in the reclaiming note, in which was craved a recal of the Lord Ordinary's interlocutor, and that it should be found that no sufficient cause for the removal of Mackenzie had been alleged.
It was conceded that the new factor appointed by the Lord Ordinary was qualified for the office.
The Court unanimously held that there was no ground for disturbing the interlocutor of the Lord Ordinary; that, while it was competent, it was, in the general case, inexpedient that a cautioner for a former factor should be appointed factor; that, in the present case, the new factor was equally qualified to discharge the duties of the office; and that, although the objection resolved very much into a technicality in respect of the cautioner's qualifications, it was on the whole better to adhere to the general rule.
Solicitors: Counsel for the Accountant— Mr H. J. Moncreiff.
Counsel for Mackenzie— Mr Gifford. Agents— Thomson & Dickson, W.S.
