Civil

M'Alley's Judicial Factor

[1900] ScotCS 37SLR0919Court of Session1900

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On 29th November 1899 William M'Alley and others presented a petition praying (1) for sequestration of the trust-estate of the deceased Mrs Isabella Balfour or M'Alley, who died in January 1893, (2) for removal if necessary of the two trustees appointed by her, and (3) for the appointment of a judicial factor. The petition was presented to the Inner House, as it contained a prayer for the removal of the trustees.

By her trust-disposition and settlement Mrs M'Alley directed her trustees to realise the trust-estate and divide the residue into five shares. One of such shares was to be paid to each of her four children, William, Margaret, Annie (Mrs Robert Barr), and Catherine (Mrs William Stoddart). The remaining share was to be held by the trustees for behoof of the children of her deceased daughter Helen (Mrs Hardie). The trustees were two in number, Mr Robert Barr, clerk in Grahamston, and Mr William Stoddart, warehouseman in Selkirk, each of whom had married a daughter of the testatrix.

On 14th December 1899 the First Division of the Court, without removing the trustees, sequestrated the trust estate, appointed Mr John Dalziel, C.A., to be judicial factor thereon, and remitted to the Lord Ordinary on the Bills for further procedure.

The judicial factor thereafter presented a note in the factory to the Junior Lord Ordinary (Pearson), in which he stated that Stoddart pretended he had handed all the papers to his wife, but that this was merely a subterfuge to evade implementing the decree of Court.

Note .—[ After stating the facts as above set forth ]—“The judicial factor could, I suppose, imprison Stoddart on the decree ad factum præstandum . But that would probably lead to delay, and moreover there is no certainty that it would lead to the recovery of the writs, which after all is the urgent matter.

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The writs being what are wanted, there seems to be direct authority for the alternative prayer in the case of Orr Ewing's Judicial Factor , 1884, 11 R. 682, page 686. In the present case it may be thought that the foundation for a warrant to open lockfast places is fully laid by the ample notice already given to the trustee William Stoddart, by his disregard of the charge on the decree, and by the explanation given by him that he has handed the documents to his wife.

My reason for reporting the case is that the remedies proposed appear to lie within the nobile officium of the Court, and that it being at least arguable that they do so, it is desirable that the validity of the strong measures which appear to be called for should be beyond question.”

Page: 921 ↓

The judicial factor referred to the case of Orr Ewing's Judicial factor , March 7 and 12, 1884, 11 R. 692, and maintained that the present case was a fortiori of that one.

Lord President —This is happily a very exceptional case. Indeed I do not recollect seeing one exactly like it.

The respondent was appointed a trustee under a trust-disposition and settlement, and for more than seven years he has succeeded in evading his duty and doing nothing in the administration of the trust. He has defied the trustee who desired to act and the persons interested in having the trust duly administered. When a judicial factor was appointed and sought to get possession of certain writs, with a view to putting the trust into a working condition, the respondent would do nothing to aid him. Then the judicial factor very properly—it was the only thing he could do—raised an action against him, concluding for delivery of the writs and for count, reckoning, and payment. In this action he obtained a decree in absence ordaining the respondent, inter alia , to deliver up the writs to him. This decree was extracted and the respondent was duly charged thereon, but still he does nothing and pays no attention to the charge. He has thus absolutely defied the decree of the Court and has taken no notice of its order, and the question is, “What is now to be done? It is clear that the Court cannot allow its orders to be thus disregarded. The factor in his present note prays alternatively either ( first ) that the respondent shall be ordained to appear personally and bring the writs with him, or ( second ) that warrant shall be granted to messengers-at-arms to search for and take possession of the writs. It is suggested by Mr Pearson—and it very probably is the case—that if we made the first order, the respondent would hand the writs to someone else and then say that he cannot get them. The better course, therefore, it appears to me, will be to grant the order sought in the second alternative prayer. It is a strong order no doubt, but not unprecedented. In the case of Orr Ewing there was not the same persistent disregard of the decree of the Court as there has been in this case. Then in that case there was a great difference of opinion between the English and the Scotch Courts as to their respective jurisdictions, and there was no question of the writs being destroyed or improperly put away, as they were exhibited to the judicial factor in an office in Glasgow. I think Mr Pearson is well founded in saying that the present case is a fortiori of that case, and therefore that the order should be granted.

Lord M'Laren —I am of the same opinion. If this had been a question of withholding delivery of documents by one private individual from another, the remedy would have been imprisonment of the recalcitrant person till he restored them. But this trust is under the control of the Court and administered by its factor, and the judicial factor has already raised an action against the respondent, obtained decree against him, and has given a charge on that decree. As the holder of the documents still declines to deliver them up, I have no doubt that we are entitled to grant what is equivalent to a second diligence against him. This has been done before, and I agree that this is a proper case for exercising our power.

Lord Adam and Lord Kinnear concurred.

The Court granted warrant in terms of the second alternative of the prayer of the note.

Counsel for the Petitioner— Pearson. Agents— Beveridge, Sutherland, & Smith, S.S.C.

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