Scottish Court of Session Decisions

The royal burgh of Loehmaben became bankrupt, and, in 1824, on the application of some of its creditors, and also of the Magistrates and Town-Council, the Court “sequestrated the whole estate and property of the said burgh.” A judicial factor was afterwards appointed. In 1828, a petition was presented by the Magistrates praying the Court to ordain the judicial factor to give up to them the small customs of the burgh, for satisfying unavoidable official disbursements, and to account for the small customs drawn by him since his appointment; and also to find him liable in the expense of the application. The judicial factor lodged answers, pleading that the whole customs fell under the sequestration, and that the creditors of the burgh had right to them; and, at all events, that he was not liable except to pay such sum, out of these customs, as was necessary for unavoidable burgh expenditure. The magistrates were ordered on July 4, 1828, to put in a condescendence of the disbursements claimed by them, but this was not lodged. On July 11, 1828, the Court, on the motion of the magistrates, “granted warrant upon and authorized the judicial factor to pay over to the magistrates such necessary sums as the magistrates have already paid, or may still be called on to pay in discharge of their official duties, reserving hinc inde all other claims which may be competent to the magistrates or their successors in office, and all answers thereto for the judicial factor or other parties, and allowed an interim warrant, as aforesaid, to be extracted.” In these proceedings, William Martin, S.S.C., acted as agent for the magistrates. The Court pronounced no order as to the expenses of the magistrates, and when a motion was made, on Feb. 19, 1831, before the Lord Ordinary for these expenses, his Lordship “in respect the interlocutor pronounced by the Court on the application to them for a warrant on the judicial factor to pay such sums as they might necessarily disburse in the discharge of their judicial duties, contains no finding as to the expenses of the application itself, finds it incompetent for the Lord Ordinary to decide as to that expense.”

In 1837 a new petition was presented in name of the Magistrates and Town-Council of Lochmaben, and of Martin, praying for an order on the judicial factor to pay the account of expenses incurred, as above, to Martin, out of the balance of petty customs in his hands; to appoint the judicial factor “to account to the magistrates for the said customs drawn by him since his appointment as judicial factor, and to pay over to them whatever balance of the said amount of petty customs which shall remain in his hands, and the appointment of his predecessor in office; to prohibit and discharge him from farther levying those petty customs, and to grant warrant upon him to give up to the magistrates the said customs, to be administered and applied by them exclusively.”

The judicial factor pleaded, that, in so far as regarded the magistrates, the petition was incompetent. The claim for the expenses of their agent Martin, incurred in the former petition, which was never out of Court, ought to be made in that petition itself, and could not be entertained under this petition. And the rest of the prayer, relative to the petty customs, was the same with the prayer of the former petition, and was therefore barred by the plea of lis pendens. The proper course for the petitioners to have taken, was to renew procedure under their former petition, and not to present a new one. On the merits, the judicial factor naintained, that, both in respect of the special terms of the decree of equestration, and on general principle, the customs claimed by the magistrates were a fund available to the creditors of the burgh, especially as an interlocutor had been pronounced which ordained the judicial factor “to pay over to the magistrates such necessary sums, as the magistrates have already paid, or may still be called on to pay, in discharge of their official duties.” The free surplus of the customs, only, remained of the creditors under this interlocutor; and to that they were clearly entitled.

In regard to the agent, Martin, the judicial factor pleaded that his claim for payment of his account lay primarily against his employers, the Magistrates and Council: and that in any view, he could not plead a claim for expenses under the present petition, or on any higher ground than they could do.

The petitioners, in an oral reply at the bar, proposed to amend the prayer of their petition by craving the Court to resume the former petition, and conjoin it with the present one, if this was necessary in point of competency; and on the merits, pleaded, that their right to the petty customs was inalienable, and could not be attached by the creditors of the burgh. ¹

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¹ Phin, May 22, 1827 (ante, V. 690; new ed. 644).