thing 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. 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 Manage ment, 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. Judicial Factor Judicial Factor and an Inven. III. And be it enacted, That every Judicial Factor shall, as soon as may be after extracting his Appointment, and within Six to lodge with the Accountant Months at latest from the Date on which his Bond of Caution shall a distinct Rental have been received, lodge with the Accountant a distinct Rental of Lands comof all Lands committed to his Management, specifying the Rents, mitted to his Revenues, and Profits of such Lands, the existing Leases, and Management, a other Rights affecting the Lands, and the public Burdens and other List of Funds, Burdens thereon, and a List of all Monies and Funds belonging tory of Move. and Debts due to the Estate, specifying the Particulars of each ables, &c. 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 Factor to close his Accounts once a Year, and lodge the same with Accountant. Factor to lodge Monies in one of the Banks of Scotland; Penalties on Factor for Mis conduct. Factor may Powers. 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. 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. And be it enacted, That the Factor shall lodge the Money in his Hands in some One of the Banks in Scotland 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. 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. And be it enacted, That if at any Time it shall appear apply for special 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 Lord Ordinary shall, with or without further Inquiry, report the Matter to the Court, who, if they consider it expedient and consistent with due Regard to the Amount of the Estate at the Time, may sanction the Measure, and the Decision of the Court shall be final, and not subject to Appeal; and if the Estate Estate be held under Entail, it shall be lawful to the Court to authorize the Factor to take Proceedings for constituting as a Charge against the future Heirs of Entail, or otherwise recovering, the Money expended in making any Improvements upon the Estate, under and in Terms of an Act passed in the Tenth Year of the Reign of His Majesty King George the Third, intituled An 10 G. 3. c. 51. Act to encourage the Improvement of Lands, Tenements, and Hereditaments in that Part of Great Britain called Scotland held under Settlements of strict Entail, and under and in Terms of an Act passed in the Session of Parliament holden in the Eleventh and Twelfth Years of the Reign of Her present Majesty, intituled An Act for the Amendment of the Law of Entail in Scotland; 11& 12 Vict. but nothing herein contained shall be held as conferring Power c. 36. on the Court to authorize the Factor to build or enlarge a Mansion House upon the Estate, or to charge the Estate and future Heirs of Entail to a greater Extent than One Half the Amount with which the Heir in possession, if under no Incapacity to act, could have charged the Estate under the said Acts, or either of them; and if any Factor having Charge of the Estate of any Lunatic or other Person incapable of managing his own Affairs shall deem it proper for the Comfort or Welfare of such Person that the whole or a Part of such Estate should be sunk on Annuity, he shall report the Matter to the Accountant, who shall state his Opinion thereon in Writing, and such Report and Opinion shall be submitted by the Factor, with a Note as aforesaid, to the Lord Ordinary, who shall report the Matter to the Court, and it shall be in the Power of the Court to sanction the Measure, and the Decision of the Court shall be final, and not subject to Appeal; and in all other Matters in which special Powers are, according to the existing Practice, in use to be granted by the Court, the Court shall have Power to grant the same in like Manner and Form as is above provided. VIII. And be it enacted, That in all Cases in which Applica- Before special tion shall be made to the Lord Ordinary or the Court by any Powers, &c. Factor, or other Person having Right to make the same, for special are granted, Powers or for the extraordinary Application of Money or Funds or Property belonging to any Estate, the Lord Ordinary or Court shall order such Intimation to be made as may be deemed proper. Court to order IX. And be it enacted, That it shall be lawful for Her Ma- Power to jesty and Her Heirs and Successors to appoint a Person versant appoint Acin Law and Accounts, to be called The Accountant of the Court countant. of Session, for performing the Duties of that Office, with such yearly Salary, not exceeding Six hundred Pounds, payable quarterly out of the Fee Fund established by this Act, and with such Accommodation of Office Room, or reasonable Allowance for the same out of the said Fund, as may be fixed by the Commissioners of Her Majesty's Treasury, or any Three or more of them, but such Salary shall always be restricted, so as not to exceed the clear existing Proceeds of the aforesaid Fee Fund after deducting all other Charges thereon; and the Accountant shall be allowed Two Clerks, whom he shall appoint, with a Salary not exceeding Two hundred Pounds yearly for the First and One hundred and fifty Pounds yearly for the Second, which Salaries shall also be paid quarterly out of the said Fee Fund; and the Accountant General Nature of Accountant's Duty; to assign a Day for closing first Account; to adjust the Rental, List, and Inventory; and to audit the Accounts. Accountant shall hold no other official Situation in the Court, and shall not, directly or indirectly, by himself or any Partner, be engaged in Practice; and he shall not directly or indirectly have any Management of or Intromission with any Money of any Estate under Charge of the Court; provided always, that it shall be competent for the Court or for any Lord Ordinary to remit to the Accountant to examine and report in regard to any Matter depending before the Court or such Lord Ordinary, not connected with his official Duties, and in which it shall appear to the Court or such Lord Ordinary that the Report of an Accountant should be obtained, and for such Business the Accountant shall be entitled to reasonable Remuneration. X. And be it enacted, That the Accountant shall superintend generally the Conduct of all Judicial Factors and Tutors and Curators coming under the Provisions of this Act already appointed or to be hereafter appointed, and shall see that they duly observe all Rules and Regulations affecting them for the Time. XI. And be it enacted, 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. XII. And be it enacted, That the Accountant shall see that the Factor lodges a Rental, List, and Inventory in Terms of this Act, and shall, along with the Factor or his Agent, examine, verify, and adjust, and with the Factor sign the same, and shall ascertain the Circumstances of the Estate, and call for all necessary Documents, so as to form a clear Rule of Charge against the Factor at the Commencement of his Office, and the Accountant shall retain such Rental, List, and Inventory. XIII. And be it enacted, That the Accountant shall see that the Factor's Accounts of Charge and Discharge, with the Vouchers thereof, are duly lodged, and shall thereafter examine the same without undue Delay, and audit the Account on the general Principles of good ordinary Management for the real Benefit of the Estate and of those interested therein, and he shall consider the Investments of the Estate and the Sufficiency thereof, and he shall be entitled to require from the Factor all necessary Information and Evidence, and he shall fix the Amount of the Factor's Commission for the Period embraced by the Audit according to his Opinion of what is just in each particular Case, and he shall strike the Balance and shall state the Result of his Audit in the Form of a short Report, and if he has made any Corrections on the Account, he shall, if required by the Factor, explain such Corrections and his Reasons for making them. XIV. And XIV. And be it enacted, That the Accountant shall have Power, Rules of exact upon Report to and with the Approval of the Lord Ordinary, Diligence may where the Sum involved exceeds Twenty Pounds, and without be dispensed such Report and Approval where the Sum involved is less than Twenty Pounds, to dispense with the Rules of exact Diligence in any Matter of factorial Management. with. Factor, if not objected to, and if Objections, how to be disposed of. XV. And be it enacted, That the Accountant's Audit and Accountant's Report shall be conclusive against the Factor and his Cautioner Report concluif written Objections shall not be lodged by the Factor with the sive against Accountant within Twenty Days from the Date of such Audit and Report being communicated to the Factor; but if Objections be lodged, the Accountant shall consider the same, and may alter his Report if he sees Cause; and unless the Objections are allowed or departed from, the Account and Report and whole Proceedings shall be transmitted by the Accountant to the Lord Ordinary, who shall call the Factor or his Agent, and if necessary the Accountant, before him at Chambers in reference thereto, and the Lord Ordinary or the Court, if the Matter shall be reported or brought under Review, may affirm, vary, or reverse the Audit and Report of the Accountant, and may reserve any Question or Questions which are raised in the Objections for the Factor till the final Audit of his Accounts, directing the Account to be balanced for the present, as the Lord Ordinary or the Court may think expedient and just; and no Judgment of the Lord Ordinary, pronounced as aforesaid, shall be subject to Review at the Instance of the Accountant, nor, in case the Lord Ordinary shall reserve any Question as aforesaid, shall it be competent to the Factor to reclaim against such Reservation; but in case the Lord Ordinary shall decide against the Factor, he may bring the Interlocutor under Review of the Court, by a short Note of Appeal from the Lord Ordinary's Judgment, and the Judgment of the Court shall not be subject to Appeal at this Stage nor till the Termination of the Factory, without the Leave of the Court: Provided always, with reference to such Discussion between the Accountant and the Factor, that at the Audit of the Factor's Accounts, at the Termination of his Factory, it shall be competent to the Factor and his Representatives, or to any succeeding Factor, or to any Parties beneficially interested in the Estate, to enter upon such Matter of Objection, if the same has been reserved, but if the same has been decided by the Lord Ordinary or the Court, the Decision shall not be opened up except upon Cause shown; and the Factor shall not be entitled to charge the Expense of any such Proceedings against the Estate, without the special Authority of the Lord Ordinary or the Court. the Accountant. XVI. And be it enacted, That it shall be lawful for the Cau- Cautioner may tioner to appear and be heard before the Accountant during the be heard before course of the Audit, or to state Objections to the Audit within Twenty Days from the Date of the Report being intimated to the Factor as aforesaid, unless the Accountant shall grant further Time, not exceeding Six Weeks; and for the Purpose of stating such Objections the Accountant shall, if required, furnish to the Cautioner a Copy of his Report, and the Expense of such Copy, and of any Discussion that shall take place during or after the Audit at the Instance of the Cautioner, shall be borne by the Cautioner, |