Scottish Court of Session Decisions

In 1828, James William Grant, then in the East Indies, succeeded to the estate of Wester Elchies in Scotland. In the same year John Alexander Cameron, writer in Banff, was appointed factor loco absentis on the estate, and Patrick Cameron and others became his cautioners. Mr Grant having, in May 1829, received intelligence of his succession to the estate, executed a factory and commission in favour of his eldest son William Grant, then in Scotland. The deed narrated, that it “had become indispensably necessary and proper that I should nominate and appoint some fit person or persons in Scotland to manage my said estates, and to collect the yearly rents, feu-duties, and other casualties of my said estates, and to conduct and superintend all my other matters and affairs in the said counties, or any other part of North Britain,” &c. “And having entire confidence in the integrity and abilities of William Grant, my son, at present resident in Scotland, for executing the said important purposes, I do accordingly, therefore, hereby nominate, constitute, and appoint the said William Grant to be my principal factor, attorney, commissioner, cashier, and baron bailie in Scotland, during my own will and pleasure, with full power, warrant, and commission to the said William Grant to collect the yearly rents, feu-duties, and other casualties of every nature and denomination, of my said estates, for crop and year 1828, and to remove and input tenants, as to my said factor shall appear necessary in all time thereafter, as my said rents and others shall become due, until this factory and commission shall be recalled under a writing in my hand; and also with full power and authority to my said factor and commissioner to sue for and recover the rents, feu-duties, and other casualties of my said estates by legal means, on all occasions when such measures shall become necessary, and to grant receipts and discharges to the tenants on my said estates, and others for the same; all which receipts and discharges, and all other legal acts and deeds of my said factor and commissioner, I oblige myself to warrant, maintain, ratify, and confirm to my said tenants, and all others concerned, as fully and freely in every respect as if the said receipts and discharges, and acts and deeds of my said factor were granted and executed by myself.”

This commission was received by William Grant, and it was said to have reached him as early as the end of 1829; but John Alexander Cameron continued to uplift the rents, under his judicial factory, until March, 1832. Cameron then presented a petition for his discharge and exoneration, and for recal of the factory, and to have the cautioners bond delivered up to them; and he stated that “the petitioner laid the accounts of his intromissions before Mr William Grant for his examination, and he has reported that they are correctly stated, and that there is a balance due to the petitioner, on the 21st ult., of £827. The accounts, as audited by Mr Grant, are herewith produced,” &c.

A short time prior to this, the following docquet, in the handwriting of William Grant (now major), was added to the cash book of Cameron, relative to his accounts and intromissions as judicial factor:—

“Banff, February 21, 1832.

“I certify that the foregoing sixty-five folios contain a full and accurate account of the receipts in money, and payments therefrom, made by John Alexander Cameron, solicitor in Banff, from the period of his appointment as factor loco absentis on my father's estates in Scotland, down to this date, being from Martinmas, 1828; and that I have seen and examined the vouchers accordingly, the balance due him being £302, 12s. 4d. sterling, besides interest.

(Signed) “Wm. Grant, Commissioner for

J. W. Grant, Esq. of

Wester Elchies.”

This docquet was produced along with the petition, and Cameron alleged that it had not been made up till after William Grant had thoroughly examined the accounts, and signed each page of the cash-book.

The petition was ordered to be intimated for eight days; and, on the eighth day, the prayer was granted. The bond of caution was afterwards cancelled, and given up to the cautioners; and the balance was paid by William Grant to the factor. No judicial investigation of the accounts had taken place before granting the petition, and no judicial appearance was made for William Grant, but the agent who acted for Cameron was the family agent of Mr Grant.

In November, 1831, Mr J. W. Grant, who was still abroad, executed a power of attorney in favour of Edward Fletcher and others, empowering them to demand and sue for all and every “Such sums of money, goods, chattels, and effects, &c, as now is and are, or at any time or times hereafter shall or may be or become due, owing, and payable, or belonging to me by any ways or means, or in any manner howsoever, nothing excepted or reserved, and upon non-payment or nondelivery thereof, or of any part thereof respectively, to sue forth, institute, commence, and prosecute, any action or actions, suit or suits, or other legal, equitable, or ecclesiastical process or proceedings for the recovery thereof, and to settle, allow, and adjust all or any accounts or reckonings relative thereto.”

He also granted to them another factory, empowering them to demand, uplift, and pursue for all debts, and sums of money, and others whatsoever, due to him, and particularly, “to collect, levy, and uplift, and if needful, to call, charge, and pursue for the rents, mails, farms, profits, and duties of my lands and estates of Wester Elchies, &c.; as well as arrears of preceding years, as also of the present year, and of all crops and years to come during the subsistence of this present factory.”

These factors, and their mandatory, raised an action against Cameron and his cautioners, to reduce the decree of discharge and exoneration of Cameron, and to compel him to enter into a full accounting as to his intromissions. The reasons of reduction were, 1st, That the decree had been obtained in absence, and irregularly, as the days of intimation had not elapsed, and the last day was still current, when decree was pronounced; and, 2d, That there had been no investigation of the accounts, and no such balance was due to the factor as was there stated.

Cameron pleaded in defence, 1st, That as there had been a settlement of accounts with William Grant, acting for his father, the constituent of the pursuers, and such settlement had been judicially ratified, it required specific authority from the father to raise a reduction of that settlement, and the commission did not authorize them to raise this action. 2d, William Grant ought to be made a party to the process. 3d, The decree was obtained with perfect regularity, and under the superintendence of the family agent of Mr Grant. Though pronounced on the last day of intimation, yet the intimation had completely run, as dies inceptus pro completo habetur. But, separately, there was no need of waiting for the expiry of intimation in this case. Cameron having acted as factor loco absentis, it was competent at any time for the absent party to have appeared, and dispensed with intimation altogether, and consented to Cameron's obtaining decree of discharge de plano, if he was satisfied with his accounts. The Court had no farther duty than to protect the interests of the absent party; and the docquet by the son, and commissioner of the absent party, was of the same effect as if the absent party had appeared and concurred in the petition for exoneration, and it equally superseded all judicial intimation or investigation. The powers of the commissioner to settle the accounts were undoubted, and they extended back to all the rents which had been uplifted by the defender. 4th, It was admitted that there were some errors in the accounts, but they were both against and for Cameron; and, on the whole being rectified, there would still be left a balance due to him. There was, therefore, no ground left for reducing the decree of exoneration.

The cautioners pleaded separately, that, as they were led to rely upon the cancelling of their bond, in consequence of the son and commissioner of Mr Grant having audited and settled accounts with the judicial factor, and a discharge of the Court being obtained, it was impossible now to rear up the cautionary obligation against them anew, when an interval had elapsed, and a change of circumstances, either in regard to the factor, or any of themselves, might have occurred.

The pursuers answered, 1st, That they were expressly empowered to uplift and discharge all debts and arrears of rent, and to institute any actions requisite for this end. It was to recover such arrears that the present action was brought; and, though reductive conclusions required to be inserted in order to make way for the petitory conclusions, it was competent and necessary for them to insist in such action, in the discharge of the duty intrusted to them. 2d, It was not incumbent on the pursuers to call William Grant 3d, The days of intimation must in all cases have run out to the last moment of the last day before the term of intimation was complete. If decree was taken before this, it was irregular. There had been no judicial appearance by William Grant, to dispense with intimation, and consent to decree; and he had not got the full term of intimation to appear, if so advised. Besides, it was ultra vires of William Grant, under his commission, to exoner the factor extrajudicially. The decree was, therefore, irregular, notwithstanding the docquet; as to which the pursuers were farther ready to prove that William Grant was but lately come of age when he signed it, and did not understand the accounts, to which it purported to relate. 4th, The accounts were grossly erroneous, even ex facie.

As to the cautioners, if they proposed to rely upon the regularity of the decree of discharge, the obtaining of which was wholly the act of the judicial factor, it was their duty to have superintended his proceedings, and seen that these were regular. If they failed in this duty, the consequences must fall upon themselves, and not upon the absent party, who had no means of protecting himself at the time.

The Lord Ordinary ^* “sustained the title of the pursuers; reduced the decree of exoneration of the 10th of March, 1832, and decerned: Found, that the defenders are bound still to account to the pursuers for the intromissions of, John Alexander Cameron, as judicial factor, and quoad this accounting, before answer, remitted to Mr James Ogilvy, accountant in Edinburgh, to examine the accounts, and report; with power to him to call for all vouchers and other writings, and granted diligence to both parties for their recovery: and found the defenders liable in the expenses incurred by the discussion of the two points, viz. of the title, and of the reduction now disposed of.”

The defenders reclaimed; and the Court sisted process, until William, Grant should be made a party. This having been done, the case was resumed.