Accountant of Court v. Wallace's Curator [1924] ScotLR 259 (11 January 1924)

Accountant of Court v. Wallace's Curator [1924] ScotLR 259 (11 January 1924)

The Court is justified in authorising the Clerk of Court to sign and deliver the discharge in place of the recalcitrant bondholder, as the joint minute had judicial authority, ordinary remedies were impracticable due to lack of funds, and the purchasers accepted the sufficiency of such a discharge to clear title.

Citation
[1924] ScotLR 259
Parties
Pursuer and Nominal Raiser: James Walker Inglis, Accountant of Court; Real Raiser: Charles Williamson, Chartered Accountant, Aberdeen, curator bonis of Marian Jane Wallace; Defender: Elizabeth Smith Wallace; Defender: Edith Evans Wallace; Defender and Bondholder: Robert Smith Wallace, insurance inspector, Aberdeen; Claimant (adjudication of Bond): James Parker Niven, solicitor, Edinburgh
Jurisdiction
Scotland
Judgment Date
11 January 1924
Procedural Posture
Multiplepoinding / Post Judgment Enforcement; Application for Authority to Clerk of Court
Outcome
Application granted; Clerk of Court authorised to sign and deliver discharge in place of Robert Smith Wallace.
Legal Topics
Multiplepoinding, Decree Ad Factum Praestandum, Refusal to Implement Court Order, Authority to Sign Discharge, Nobile Officium
Civil Procedure Property Law Trusts and Estates Multiplepoinding Decree Ad Factum Praestandum Refusal to Implement Court Order Authority to Sign Discharge Nobile Officium

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Parties

James Walker Inglis, Accountant of Court

Pursuer and Nominal Raiser

Charles Williamson, Chartered Accountant, Aberdeen, curator bonis of Marian Jane Wallace

Real Raiser

Elizabeth Smith Wallace

Defender

Edith Evans Wallace

Defender

Robert Smith Wallace, insurance inspector, Aberdeen

Defender and Bondholder

James Parker Niven, solicitor, Edinburgh

Claimant (adjudication of Bond)

Procedural Posture

Multiplepoinding / Post Judgment Enforcement; Application for Authority to Clerk of Court

Legal Issues

  1. 1 Whether the Court can authorise the Clerk of Court to sign and deliver a discharge in place of a bondholder who refuses to implement a court order under a joint minute in a multiplepoinding action.

Ratio Decidendi

The Court is justified in authorising the Clerk of Court to sign and deliver the discharge in place of the recalcitrant bondholder, as the joint minute had judicial authority, ordinary remedies were impracticable due to lack of funds, and the purchasers accepted the sufficiency of such a discharge to clear title.

Court Disposition

Application granted; Clerk of Court authorised to sign and deliver discharge in place of Robert Smith Wallace.

Orders

  • Authorise and empower John Cairns, Depute-Clerk of Session, to sign the discharge in place of Robert Smith Wallace and deliver it to the agent of the real raiser.
  • Find Charles Williamson (curator bonis of Marian J. Wallace) entitled to expenses incurred due to Robert Smith Wallace's failure to sign the discharge, out of the sum of £600 sterling.