Scottish Court of Session Decisions

Lord President—In the ordinary case of finding caution by a judicial factor, the second section of the Pupils Protection Act enacts that “every judicial factor shall, within such time after his appointment as the Court shall direct, find caution for his duly accounting for his intromissions and management, and observing and performing every duty incumbent upon him as factor, in terms of the rules prescribed, or to be prescribed, for the discharge of his office, and in case of his failure to do so, his appointment shall fall; and no factor shall enter upon the duties of his office, nor shall an extract of his appointment be issued, until after such caution is found and received as sufficient; and the factor shall extract his appointment without delay.” In the case of an original appointment the check and security is (1) that if the factor does not find caution within the set time his appointment falls, and he cannot extract his appointment until caution is received as sufficient, that is, by the Principal Clerk of Court. Then the 11th section provides that, “on the factor's bond of caution being received as sufficient, it shall be transmitted by the clerk to the process to the accountant, who shall forthwith give a written intimation, dated and signed, to the factor or his agent, stating that the bond has been received, and assigning the day on which the factor is to close his first account, being not less than six nor more than eighteen months from the date of such intimation; and on the death or insolvency of the cautioner of any factor, such factor shall forthwith give notice in writing to the accountant of such death or insolvency; and the accountant shall, as soon as the fact shall come to his knowledge, by means of such notice or otherwise, require new caution to be found.” That is all the guidance we have in the Act of Parliament. In the case contemplated by the last paragraph of the 11th section, the factor intimated that his cautioner was dead, whereupon the Accountant of Court appointed new caution to be found on 12th May 1863. This order was renewed in June and again in July 1863. Now the factor provided and put in a new bond of caution, which was lodged with the Principal Clerk in common form, with this exception, that it did not contain a certificate by the agent in the form required by the clerk as one of the securities for the sufficiency of the caution. Now, this certificate does not stand on any formal order, but we must have some regard to the peculiar position of the Principal Clerk, who must satisfy himself of the sufficiency of the cautioner, and in the performance of that duty he has considerable responsibility. He is entitled to establish as matter of practice that such a thing shall be done in order to satisfy him; and we hear that it is matter of invariable practice to require that the agent in the cause shall certify that to his own knowledge the caution is sufficient. It would be out of the question to say that the Principal Clerk is not entitled to require that such certificate shall be given, and I cannot therefore say that Mr Currie, when he refused to mark this as sufficient, did anything he was not entitled to do for his own protection, as well as for the protection of the estate, for this certificate was not that of the agent in this Court, but of some agent in the country, about whom Mr Currie probably knew nothing. Mr Currie did not mark this as sufficient, and the bond was not transmitted to the Accountant of Court. 1 cannot hold that this caution was accepted, and, not having been accepted, there was not thereby constituted a subsisting cautionary obligation. It appears to me that the Act contemplates that the proper check is that, till new caution is found, the factorial management shall not proceed. There is thus a check on the office of the Accountant of Court; and whether the last accountant should not have taken more vigorous measures I do not now say, for there is no sufficient information before us, but it is there that the check has failed, and certainly there was no failure on the part of the Principal Clerk, who appears to have been pursuing his ordinary line of duty in refusing to mark this as sufficient. My opinion is that this note must be refused.

The other Judges concurred.