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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pet. - Mrs Mackay [1867] ScotLR 3_329 (20 March 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0329.html Cite as: [1867] SLR 3_329, [1867] ScotLR 3_329 |
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Page: 329↓
(Before
Held (per Lord Mure, and acquiesced in) that a law agent for a beneficiary under a trust-deed was not entitled to plead his right of hypothec in regard to the rental book of the estate, against a judicial factor, the latter being the natural custodier of such vouchers.
A question affecting the principle of a law agent's right of hypothec arises in this case. In 1821, John Russell, Esq., of Moreless and Balmaad, died, leaving a trust-deed, by which he conveyed his property to trustees. The trustees failed, and his daughter, Mrs Mackay, wife of Captain Mackay, of the 50th Regiment, with, it is said, in these proceedings, the consent of the trustees, served heir in general to her father, and assumed the management of the estate. The trust-deed provided that, in the event of Captain Mackay predeceasing his wife, the trustees were, a twelve-month after that event, to divest themselves of the capital of the estate and make it over to Mrs Mackay, who was to be taken bound, by a deed sufficient for the purpose, that the capital and interest should be preserved for behoof of her children, and at her death divided equally among them. Mrs Mackay having served to her father, executed a disposition of the property to herself in liferent and her children in fee, and she continued along with her husband in management of the estate until 1840, when a judicial factor was appointed on an application made by Mrs Ewing, a daughter of Mrs Mackay. The estate has since then been in the hands of successive judicial factors, and is now under charge of Mr John Allan, solicitor, Banff, who was appointed in 1866. In these circumstances, Mrs Mackay brought a petition last year, praying for an annuity out of the estate. This being opposed by Mrs Ewing, the judicial factor was called upon by the Lord Ordinary to supply certain information to the Court, and in particular to instruct the alleged indebtedness by Mrs Mackay of considerable sums to the trust-estate, which were set up as a reason why no annuity should be granted. To enable him to do this, the judicial factor served a specification of writs for recovery of the rental book of the estate while that was under the management of Captain and Mrs Mackay. That specification was served on Messrs H. & H. Tod, W.S., who put in answers to the petition on behalf of the executor of the late Mr Pyper, writer in Edinburgh, who was the executor of the late Mr Dougal Grant, solicitor in Edinburgh, sole partner of the firm of Messrs Macmillan & Grant. Macmillan & Grant had done a good deal of law business for Captain and Mrs Mackay for the period between 1839 and 1856, in connection with the estate, and with their rights under it as beneficiaries. In particular they had acted as agents for Mrs Mackay in a petition for recal of one of the factors, and the appointment of another. For the account so incurred, Messrs H. & H. Tod,
Page: 330↓
as representing the interest of Macmillan & Grant, claimed a right of hypothec over the rental book of the estate and other writings which had come into their possession on the employment of Captain and Mrs Mackay. The Lord Ordinary remitted to a commissioner to take proof under the specification, when Mr Tod appeared, and declined both to produce the book and to say where it was. The commissioner having reported the matter to the Court, a discussion followed as to the validity of the alleged right of hypothec. In the course of the discussion it was admitted that the rental book was in the possession of the Messrs Tod, but they maintained their right to retain it until payment of their account, or at any rate of that part of their account which was incurred in the recal and appointment of a new judicial factor, because that was both beneficial to the estate and a direct charge against it. The Lord Ordinary pronounced the following interlocutor, which has been acquiesced in:—
“28 th February 1867.—The Lord Ordinary, having heard counsel on the report of the commissioner, No. 40 of process, relative to the objection raised by the haver, under the call made upon him to produce in terms of articles 1st and 2d of the specification No. 37 of process, Finds that the haver is bound to answer the question whether he has the rental book and other writs called for in his possession, and if so, to produce the said rental book; and ordains him to produce the same by Monday first, under reservation of claim he may have to payment out of the estate in the hands of the judicial factor of such of the accounts in respect of which the claim of hypothec is asserted, as he can instruct are properly chargeable against that estate, and have not already been paid, and reserving hoc statu the questions raised as to production of the decree dative and inventory: Finds the haver liable in the expenses of this discussion, which modifies to five guineas, and decerns.
David Mure.”
“ Note.—The rental book called for ought, in the opinion of the Lord Ordinary, to have been handed over to the predecessor of the present judicial factor by the agent whose representative now claims right to retain it, when the trust estate was taken out of the charge of his client, Mrs Mackay, and placed under judicial management in 1840, and this would probably have been done had that judicial factor properly discharged the duties devolved on him by the Court. In these circumstances, it appears to the Lord Ordinary that the representative of the agent who so omitted to hand over the rental book to the judicial factor is not entitled, in respect of any of the rules which have hitherto been applied in regard to an agent's hypothec, to refuse to deliver up that book to the officer of Court under whose charge the estate now is, because of accounts incurred on the employment of one of the beneficiaries interested in the estate after it had been placed under a judicial factor. When the question was discussed before the Lord Ordinary, the claim to retain was accordingly not insisted on, in regard to several of the accounts in the appendix to the answers for the executor, on whose behalf the claim was set up; and, in particular, in regard to Nos. 2 and 5, and, as the Lord Ordinary understood, No. 7 of that abstract, and the Lord Ordinary does not very well see upon what ground, ex facie of the other accounts, a claim to retain can be maintained in respect of them as against the present judicial factor, unless it can be shown that the business was incurred upon the employment of his predecessor in the office or in proceedings necessary to be taken against that predecessor for the protection of the estate; and which, in the peculiar circumstances of the case it may have been necessary to do. While, therefore, the Lord Ordinary has appointed the rental book to be produced, he has inserted a reservation which will keep open any claim the haver can instruct to be properly chargeable against the trust — estate, which is sufficient to meet any such demand; and he has also reserved hoc statu the question as to ordering production of the decree dative and inventory.”
“D. M.”
Counsel for Haver— Mr G. H. Pattison. Agents— H. & H. Tod, W.S.
Counsel for Judicial Factor— Mr W. A. Brown. Agent— J. C. Baxter, S.S.C.
