Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0191.html
Cite as: [1867] ScotLR 4_191, [1867] SLR 4_191

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SCOTTISH_SLR_Court_of_Session

Page: 191↓

Court of Session Inner House First Division.

Wednesday, July 10. 1867

Lord President Lord Deas

4 SLR 191

Campbell, Petitioner

Subject_1Tutor-nominate
Subject_2Authority to Borrow Money
Subject_320 & 21 Vict., c. 56, & 4.

Facts:

Petition By Tutor-nominate For Authority To Borrow Money On Security Of Pupil's Estates Held Properly Presented In The Inner House.

Headnote:

This was a petition at the instance of Colin Campbell, tutor-nominate to Robert Dixon of Levengrove, Dumbartonshire, for authority to borrow money on the security of the pupil's heritable estate, on the enable him to discharge certain debts due by the estate of the pupil's father, the late Robert Dixon.

Fraser, for the petitioner, raised the point whether such a petition ought to be presented in the Inner House before the Lord Ordinary. He cited 20 and 21 Vict., c. 56, § 4, and the following authorities:- Morison, 20th Feb. 1857, 19 D. 493; Morison, 19th July 1861, 23 D., 1373; Kyle, 10th June 1862, 24 D., 1083; Young, 25th Feb. 1864, 2 Macph., 695; Stewart v. Chalmers, 14th June 1864, 2 Macph., 1216; Brown's Tutors, 16th July 1867; ante, p 184.

Judgment:

Lord President—It seems to me that this clause of the Act of Parliament has been construed with great attention to this general principle or rule, that all applications to what is properly the nobile officium of the Court, fall naturally to be presented to the Inner House. And certainly the attention the Court have paid to that general rule has very much limited the general words at the beginning of the clause; and the reason for that limitation is sound. As to the present petition, that is clearly all application to the nobile officium of the Court in the highest sense of the term. There is no more delicate exercise of the equitable jurisdiction of the Court than in granting powers to tutors-nominate. I have no doubt that this is rightly presented in the Inner House.

The other Judges concurred, Lord Deas observing that the other construction suggested would lead to this, that the whole nobile officium of the Court would be committed to the Lord Ordinary. The Court had before them a number of these petition by tutors-nominate for special powers; they had held that they were all competent, and that the Court must bestow the greatest attention on the case before they would exercise their nobile officium.

On the motion of the petitioner, the Court remitted to the Lord Ordinary to inquire and report.

Counsel:

Agent for Petitioner- John Ross, S.S.C.
1867

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