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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tod, Petitionee [1868] ScotLR 6_265 (23 January 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0265.html
Cite as: [1868] ScotLR 6_265, [1868] SLR 6_265
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SCOTTISH_SLR_Court_of_Session
Page: 265↓
Court of Session Inner House Second Division.
Facts:
Circumstances in which the Court declined to exercise its nobile officium on the requisition of certain house' holders of a burgh, who desired to carry the General Police and Improvement Act into operation.
In the action of reduction and declarator at the instance of Anderson and Others against Widnell and Others, Commissioners under the Police Improvement (Scotland) Act for the burgh of Lasswade, the Second Division, on 6th Nov. last, pronounced the following interlocutor:—“The Lords having heard counsel on the reclaiming note for Henry Widnell and Others, recall the interlocutor reclaimed against: Repel the reasons of reduction in so far as regards the interlocutors and proceedings sought to be set aside from the commencement of the said proceedings in December 1862 up to and inclusive of the interlocutor of the Sheriff, of date the 30th May 1866, and assoilzies the defenders from the reasons of reduction in so far as regards said proceedings: Farther, assoilzies the defenders from the declaratory conclusions of the summons, in so far as regards the proceedings, and decern; quoad ultra, decern and declare in terms of the conclusions of the summons: Find the pursuers entitled to expenses, and remit to the auditor to tax and report, and modify the same to one-half of the taxed amount.”
This was a petition presented by a number 6f householders of Lasswade, and it prayed the Court—“to grant warrant to and authorise and direct the Sheriff of the county of Mid-Lothian to call a meeting of the householders of the said burgh of Lasswade, as a populous place, to fix the number of commissioners to be elected by the householders to carry the said Act 25 and 26 Vict. c. 101, being ‘The General Police and Improvement (Scotland) Act 1862,’ into operation within the said burgh; and thereafter to convene a subsequent meeting of the householders in the said burgh for the election of commissioners for the purpose of executing the foresaid Act within the said burgh, such meetings to be presided over by the said Sheriff or any of his substitutes, and to be held after such notioe, and to be subject to the like procedure as is provided for by the said Act in regard to the first meeting to be held with respect to the adoption of the said Act.
The respondents submitted that the petition ought to be refused upon three grounds—“ First, That the Court has no jurisdiction to grant the prayer thereof; Second, That the petitioners are not entitled to represent either the other householders in, or the inhabitants of, the village or burgh of Lasswade to whom no notice of the petition has been given, or the applicants for the adoption of the Act, and have no title to present or insist on the present application; and Third, Even assuming that the Court has jurisdiction, and that the petitioners have a sufficient title to insist in the application, that your Lordships, in the exercise of your discretion, will deem it inexpedient, in the circumstances, to grant the authority craved.”
Gifford and A. Moncrieff for petitioner.
Clark and Johnstone in answer.
At advising—
Our nobile officium, which we possess as a Court of Equity, and as succeeding to some extent to the powers of the Scotch Privy Council, entitles us to interfere in some cases. We have sometimes appointed managers to burghs when the charters have been lost, and the want of managers would have been injurious. In private matters, also, to a certain extent we have interfered, as in lapsed trusts, the appointment of curators to minors, or to take charge of lapsed property; but two things have been always necessary (1) a necessity; and (2) a
Page: 266↓
Now, in this case, we have on the face of the petition no allegation of any special evil which we are called on to remedy. We have a narrative of facts, viz., an appointment by the Sheriff under the General Police Act of a place where that Act can be carried into execution, and then a meeting, and a resolution of that meeting, that the Act should be carried out; and the only evil which we can even imply from the statements in the petition is, that Lasswade may be without the benefit of this Act. That does not appear to me to be sufficient to authorise the exercise of our nobile officium. It certainly does not amount to a case of necessity.
The not improbable effect of our judgment, were we to grant this application, would indeed be to do violence to the spirit of the Act, which is—that the majority of the householders in any populous place shall determine whether the Act is to be adopted or not. Now, our order would not convoke the same body by any means that passed the resolution affirming the adoption of the Act, and we cannot say that the present electoral body would, like that in 1866, affirm the adoption of this Act at all. I do not say that parties are to be in every case, excluded by delay from invoking the exercise of our nobile officium, for cases may arise where the public interest would clearly require that we should exercise it; but it is a circumstance of the greatest importance to be considered here, that we could not now place the determination of this question in the hands of the same parties as determined the adoption of this Act, and whose duty it was to have appointed the commissioners.
On the whole matter it seems to me we must refuse the prayer of this petition.
One part of the inhabitants of Lasswade wish this Act of Parliament to be adopted, and the other do not. The majority at the meeting in 1866, who affirmed the adoption of the Act, make a blunder in not, at the same time, appointing commissioners, and they now come to us and wish us to exercise our nobile officium, and correct that blunder. I do not think our nobile officium is intended to cover such a blunder as that. I think there must be something separate from blame to entitle us to interfere. If indeed the blunder had affected public interests we might have done so, but I do not think there is any public interest here, for the householders are divided as to the propriety of adopting this Act. Are we to assist one side merely because their opinion may happen to concur with our own? I do not think we should assist either party.
That is the ground on which I go. It is not so much the injustice done to one party as the inexpediency of assisting the other that weighs with me.
Lord Neaves concurred.
Agent for Petitioner— James Steuart, W.S.
Agents for Respondents— Millar, Allardice, & Robson, W.S.