Judicial Factors Act 1849
| Jurisdiction | UK Non-devolved |
| Citation | 1849 c. 51 |
| Year | 1849 |
(12 & 13 Vict.) C A P. LI.
[28th July 1849]
'WHEREAS an Act of Sederunt was passed by the Court of Session inScotland on the Thirteenth Day of February One thousand seven hundred and thirty, setting forth that the Court had often been applied to for appointing Factors on the Estates of Pupils not having Tutors, and of Persons absent who had not sufficiently empowered Persons to act for them, or who were under some Incapacity for the Time to manage their own Estates, to the end that the Estates of such Pupils or Persons might not suffer in the meantime, but be preserved for the Behoof of such Persons and all having Right therein, and therefore establishing certain Regulations in regard to the Conduct of such Judicial Factors, which Regulations are still in force: And whereas the Applications to the Court of Session for the Appointment of such Factors have become very numerous; and it has been found that the existing Regulations and the present Means of enforcing them are imperfect and insufficient for preventing in many Instances the Occurrence of great Irregularity in the Conduct of such Factors, and in consequence thereof great Loss has resulted to the Funds and Estates under their Charge and to the Parties interested therein; and it has therefore become necessary to make further Provision on that Behalf: And whereas it is also expedient to make Provision for the more regular accounting and official Management of Persons who shall hereafter be served as Tutor of Law, or appointed as Tutor-dative to any Pupil, or be served as Curator or appointed as Tutor-dative to any Insane Person or Idiot:' May it therefore please Your Majesty that it may be enacted; and be it enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliamentassembled, and by the Authority of the same, That the following Words and Expressions in this Act shall have the Meanings hereby assigned to them, unless there be something in the Subject or Context repugnant to such Construction; (that is to say,) the Expression ‘Judicial Factor’ or ‘Factor’ shall mean Factor loco tutoris, Factor loco absentis, and Curator bonis; the Word ‘Tutor’ shall mean any Person who after the passing of this Act shall be served Tutor of Law to any Pupil, or be appointed Tutor-dative to any Pupil or insane Person or Idiot; the Word ‘Curator’ shall mean any Person who after the passing of this Act shall be served as Curator to any insane Person or Idiot; the Word ‘Accountant’ shall mean the Accountant of the Court of Session, to be appointed under the Authority of this Act; the Expression ‘Lord Ordinary’ shall mean the Lord Ordinary of the Court of Session discharging the Duties of Junior Lord Ordinary in Time of Session, and the Lord Ordinary on the Bills in the Time of Vacation; the Expression ‘Court of Session’ or ‘Court’ shall, excepting as to the Power of passing Acts of Sederunt, mean either Division of the Court of Session; the Word ‘Estate’ shall include all Property and Funds, and all Rights heritable and moveable; the Word ‘Lands’ shall include all heritable Subjects; Words used in the Singular Number shall be held to include several Persons or Things, and Words importing the Masculine Gender shall extend and be applied to Females as well as Males.
II Judicial Factor to find Caution for duly performing his Duties.
II. And be it enacted, 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.
III Judicial Factor to lodge with the Accountant a distinct Rental of Lands committed to his Management, a List of Funds, and an Inventory of Moveables, &c.
III. And be it enacted, That every Judicial Factor shall, as soon as may be after extracting his Appointment, and within Six Months at latest from the Date on which his Bond of Caution shall have been received, lodge with the Accountant a distinct Rental of all Lands committed to his Management, specifying the Rents, Revenues, and Profits of such Lands, the existing Leases, and other Rights affecting the Lands, and the public Burdens and other Burdens thereon, and a List of all Monies and Funds belonging and Debts due to the Estate, specifying the Particulars of each Item, and the Interest or Revenue arising from the same, the Document by which the same is vouched, and the Nature and Value of any Security held for the same, and also an Inventory of any Household Furniture, Farm Stocking, Goods, or Moveables, including Rights moveable, forming Part of the Estate; and he shall, without Delay after extracting his Appointment, recover all Writs and Documents of Importance belonging to the Estate, and collect all Monies due to the same not securely invested, and use all reasonable Diligence in ascertaining the exact Nature and Amount of the Estate placed under his Charge; and he shall produce all such Writs and Documents, and Information so obtained by him, along with the said Rental, List of Funds, and Inventory, to the Accountant, which Rental, List, and Inventory, when adjusted and approved of by the Accountant, shall be signed by him and the Factor, and shall form a Ground of Charge against the Factor; and if at any Time thereafter any new Claims or Property belonging to the Estate shall be discovered, the Factor shall report the same in his next Account of Charge and Discharge to the Accountant, who shall make such Alteration on the Rental, List, and Inventory as may be thereby rendered necessary.
IV Factor to close his Accounts once a Year, and lodge the same with Accountant.
IV. And be it enacted, That the Factor shall close his Account of Charge and Discharge once in every Year, on a Day to be fixed by the Accountant, and within One Month thereafter shall lodge such Account in the Office of the Accountant, with the Vouchers numbered, and referred to in the Account by Number: Provided always, that it shall be competent for the Accountant, on Cause shown, to prorogate the Time for lodging such Accounts and Vouchers, but in no Case shall such Prorogation extend beyond Three Months from the Day fixed for the Closing of the Accounts.
V Factor to lodge Monies in one of the Banks of Scotland;
V. And be it enacted, That the Factor shall lodge the Money in his Hands in some One of the Banks inScotland established by Act of Parliament or Royal Charter, in a separate Account or on Deposit, such Account or Deposit being in his own Name as Judicial Factor on the Estate; and if the Factor shall keep in his Hands more than Fifty Pounds of Money belonging to the Estate for more than Ten Days, he shall be charged with a Sum to the Estate at the Rate of Twenty Pounds per Centum per Annum on the Excess of the said Sum of Fifty Pounds for such Time as it shall be in his Hands beyond the said Ten Days; and, unless the Money has been so kept from innocent Causes, the Factor shall be dismissed from his Office, and shall have no Claim for Commission.
VI Penalties on Factor for Misconduct.
VI. And be it enacted, That if the Factor shall misconduct himself, or fail in the Discharge of his Duty, he shall be liable to such Fine, and to the Forfeiture of the whole or any Part of his Commission, and to Suspension or Removal from his Office as Factor, and to Payment of Expenses, or to any One or more of such Penalties, as the Court in its Discretion shall decide; and that over and above such further Liability as he may be subject to as accords of Law in reparation of any Loss or Damage sustained by the Estate in consequence of such Misconduct or Failure.
VII Factor may apply for special Powers.
VII. And be it enacted, That if at any Time it shall appear to the Factor that there is a strong Expediency for granting Abatement of Rent, either temporarily or permanently, or for renewing or granting a Lease for a Period of Years, or for draining, or for erecting Buildings or Fences, or for otherwise improving the Estate in a Manner not coming within the ordinary Course of factorial Management, he shall report the same to the Accountant, who may order any necessary Inquiry, and shall state his Opinion thereon in Writing; and such Report and Opinion may be submitted by the Factor to the Lord Ordinary, with a Note praying for the Sanction of the Court to the Measure proposed; and the...
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