HAY & Ors v SCOTT (Court of Session)

The defender Scott was, in March 1798, appointed factor loco tutoris to the minor children of the deceased Robert Cranstoun, under the act of sederunt 13th February 1730. Soon after his appointment, he lodged inventories of the minor's effects in the hands of the clerk; but he did not afterwards lodge any other account of his intromissions.

In 1809, one of the daughters and her husband presented a petition and complaint against the defender, for having him removed from his office, in consequence of his not having complied with the act of sederunt; and also concluding that he should be ordered to lodge his accounts. Thereafter an action of count and reckoning at the instance of the same parties, and the other children of Mr Cranstoun, was raised against the defender, which was conjoined with the petition and complaint.

The pursuers maintained —That, as the defender had not complied with the terms of the act of sederunt, by regularly lodging the accounts of the affairs under his management, he was liable for the penalties of that act, and was not entitled to any commission upon his intromissions; and as he had neglected to recover sums of money due to the estate, or to call in other sums which had been recovered by agents employed by him, and lay them out at interest, he was liable in these sums, as also for interest on them after the lapse of one year after they were due.

A great deal of procedure took place before the Lord Ordinary. The accountant to whom the accounts had been remitted reported a considerable balance due by the defender.

Lord Meadowbank, Ordinary. Act. Gillies. William Smith, W. S. Agent. Alt. Boswell. James Greig, W. S. Agent. Sir W. Scott, Clerk.