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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Broad v. Day and Others [1888] ScotLR 25_479 (19 May 1888) URL: http://www.bailii.org/scot/cases/ScotCS/1888/25SLR0479.html Cite as: [1888] ScotLR 25_479, [1888] SLR 25_479 |
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Page: 479↓
(Ante, p. 445.)
In a petition under sections 56 and 57 of the Companies Clauses Act, 1845, presented by a mortgagee upon whose mortgage the interest was overdue, for the appointment of a person “to receive the whole or a competent part of the tolls or sums liable to the payment of such interest” until it should be fully paid, held that though the person to be appointed was called in sec. 56 a judicial factor, he was in reality only a receiver, and had none of the powers of management belonging to a judicial factor, and that therefore a nominee of the petitioner, to whom there was no personal objection, might be appointed, though this was opposed by other mortgagees., This petition was presented by Mr Harrington Evans Broad, the holder of certain mortgages for £3370 and other sums of the Edinburgh Northern Tramways Company, incorporated under the Edinburgh Northern Tramways Act, 1884, for the appointment of Mr D. N. Cotton, chartered accountant, Edinburgh, who was the auditor of the company, as judicial factor upon the undertaking, in terms of the provisions of the 56th and 57th sections of the Companies Clauses Consolidation (Scotland) Act, 1845, such an application being authorised by the terms of the Tramway Company's special Act.
The Companies Clauses Act provides, section 56—“ Where, by the special Act, the mortgagees of the company shall be empowered to enforce the payment of the arrears of interest, or the arrears of principal and interest, due on such mortgages, by the appointment of a judicial factor, then, if within thirty days after the interest accruing upon any such mortgage or bond has become payable, and after demand thereof in writing, the same be not paid, the mortgagee may, without prejudice to his right to sue for the interest so in arrear in any competent court, require the appointment of a judicial factor, by an application to be made as hereinafter provided; and if within six months after the principal money owing upon any such mortgage or bond has become payable, and after the demand thereof in writing, the same be not paid, the mortgagee, without prejudice to his right to sue for such principal money, together with all arrears of interest, in any competent court, may, if his debt amount to the prescribed sum alone, or if his debt does not amount to the prescribed sum, he may, in conjunction with other mortgagees whose debts being so in arrear, after demands as aforesaid, shall, together with his, amount to the prescribed sum, require the appointment of a judicial factor, by an application to be made as hereinafter provided.”
Section 57—“Every application for a judicial factor in the cases aforesaid shall be made to the Court of Session, and on any such application so made, and after hearing the parties, it shall be lawful for the said Court, by order in writing, to appoint some person to receive the whole or a competent part of the tolls or sums liable to the payment of such interest, or such principal and interest, as the case may be, until such interest, or until such principal and interest, as the case may be, together with all costs, including the charges of receiving the tolls or sums aforesaid, be fully paid; and upon such appointment being made all such tolls and sums of money as aforesaid, shall be paid to and received by the person so to be appointed; and the money so to be received shall be so much money received by or to the use of the party to whom such interest, or such principal and interest, as the case may be, shall be then due, and on whose behalf such judicial factor shall have been appointed; and after such interest and costs, or such principal, interest, and costs have been so received, the power of such judicial factor shall cease, and he shall be bound to account to the company for his intromissions, or the sums received by him, and to pay over to their treasurer any balance that may be in his hands.”
Answers were lodged for S. H. Day and others, who stated that they were interested as mortgagees and shareholders of the company to the extent of nearly £20,000. They objected upon various grounds to the appointment of a nominee of the petitioner, but stated no personal objection to Mr Cotton. They also stated that they had no objection to the appointment of a neutral person selected by the Court.
At advising—
Page: 480↓
The Court granted the petition.
Counsel for the Petitioner— Graham Murray. Agents— Graham, Johnston, & Fleming, W.S.
Counsel for Respondents — G. W. Burnet. Agents—A. & G. V. Mann, S.S.C.
