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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Smith [1892] ScotLR 30_59 (12 November 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0059.html Cite as: [1892] SLR 30_59, [1892] ScotLR 30_59 |
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Page: 59↓
Held that under section 4 of the Distribution of Business (Court of Session) Act 1857, a petition by a joint-tenant for the appointment of a judicial factor on the partnership estate, and praying the Court incidentally to sequestrate the estate and interdict the other joint-tenant from selling any part thereof, must be brought before the Junior Lord Ordinary, and cannot be taken in the first instance before the Inner House.
The Distribution of Business (Court of Session) Act 1857 (20 and 21 Vict. cap. 56), sec. 4, enacts—“All summary petitions and applications to the Lords of Council and Session which are not incident to matters or causes actually depending at the time of presenting the same, shall be brought before the Junior Lord Ordinary officiating in the Outer House, who shall deal therewith and dispose thereof as to him shall seem just; and in particular, all petitions and applications falling under any of the descriptions following shall be so enrolled before and dealt with and disposed of by
Page: 60↓
the Junior Lord Ordinary, and shall not be taken in the first instance before either of the two Divisions of the Court, viz., … 4. Petitions and applications for the appointment of judicial factors.” Archibald Smith, joint-tenant of the farm of Branxton and Unthank, Largo, presented a petition to the Second Division of the Court of Session, in which he averred that for the last two years David Smith, the other joint-tenant in the farm, had become intemperate, and neglected the management and cultivation of the farm, and had become so violent, and threatened the petitioner to such an extent, that the petitioner, in fear that his life was in danger, had to leave the farm and take up his residence elsewhere. The petitioner further averred that he was thus precluded from having any voice in the management of the farm, which was being carried on by David Smith in a reckless and improvident manner, and that David Smith kept no accounts, had failed to pay the last half-year's rent, and was about to sell the stock on the farm and apply the proceeds to his own purposes.
The petitioner therefore prayed their Lordships to appoint Thomas Graham judicial factor ad interim, pending the intimation and service of the petition; “and thereafter, on resuming consideration hereof, with or without answers, to sequestrate the said partnership estate, and to appoint the said Thomas Graham, or such person as your Lordships may think proper, to be judicial factor on the said estate, with the usual powers, he always finding caution before extract, and to decern ad interim: Further, and alternatively to the crave for appointment of a judicial factor ad interim, to interdict, prohibit, and discharge (until the prayer of this petition is granted or refused) the said David Smith from interfering with the management of the said farm, and from selling or disposing of the crop, stock, implements of husbandry, and others thereon, and the young horses and cattle in the grass park at Bruntshiels aforesaid; and to grant interim interdict.”
David Smith lodged answers, in which, inter alia, he objected to the competency of the petition, on the ground that it should have been brought before the Junior Lord Ordinary under section 4 of the Distribution of Business Act 1857.
Argued for the respondent—A petition for the appointment of a judicial factor, and not incident to a depending action, was only competent before the Junior Lord Ordinary, unless (1) the petition asked for something the Lord Ordinary could not deal with, or (2) the appointment of judicial factor was incidental to something the Lord Ordinary could not deal with. Where the petitioner asked for the removal of trustees, it was only competent in the Inner House— Mitchell, Petitioner, July 20, 1864, 2 Macph. 1378—but where it did not ask for such, it was only competent before the Lord Ordinary— Rhind v. Steven, July 20, 1875, 2 R. 1002.
Argued for the petitioner—The better practice was to present applications both for sequestration and the appointment of a judicial factor to the Inner House—Mackay's Practice of the Court of Session, ii. 357; Rintoul, Petitioner, December 20, 1862, 1 Macph. 214; Spiers v. Spiers, November 6, 1877, 5 R. 75, opinion of Lord President (Inglis), 77. Besides, there was here a prayer for interdict, which could be granted by the Inner House in the exercise of their nobile officium. The Lord Ordinary's duties were purely statutory, and he could not grant the prayer for interdict— Webster v. Miller's Trustees, February 26, 1887, 14 R. 501. The petition was therefore presented to the tribunal which could deal with all its parts.
At advising—
There is no doubt that a petition for the appointment of a judicial factor is one of those cases which fall under section 4 of the Act of 1857, and are competent before the Lord Ordinary only. There are some cases where the appointment of a judicial factor was incidental to other matters, and where it has been held that the Inner House may take up the petition. Thus in the case of Rintoul it appears that the parties to the case were engaged in a litigation, and the only purpose for which the appointment of a judicial factor was sought was to prevent the rents from being squandered. But it is plain that only exceptional cases are excluded from the rule that petitions for the appointment of a judicial factor must go before the Junior Lord Ordinary in the first instance, and there are no circumstances in this case to take it out of the ordinary application of the statute.
Page: 61↓
The Court remitted the petition to the Junior Lord Ordinary, and found the respondent entitled to expenses.
Counsel for the Petitioner— Cook. Agents— Pringle, Dallas, & Company, W.S.
Counsel for the Respondent— Cullen. Agent— T. Temple Muir, S.S.C.
