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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> French Petitioner [1871] ScotLR 8_501_2 (16 May 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0501_2.html
Cite as: [1871] ScotLR 8_501_2, [1871] SLR 8_501_2
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SCOTTISH_SLR_Court_of_Session
Page: 501↓
Court of Session Inner House Second Division.
Facts:
The clerk of the Commissary Court, following the invariable practice of that Court, refused to appoint a woman, who had sufficient means, as cautioner in a confirmation.— Held that the Court should not interfere with the discretion of the clerk, although the woman proposed was seventy years of age and unmarried.
This was a petition at the instance of J. C. French and James French, presented to the Commissary of Edinburgh. The petitioners alleged that “the petitioners, as the children and nearest of kin of the said deceased John French, were lately decerned executors-dative to him, and have given up an inventory of the personal estate of the deceased, which amounts to £2547, 3s. 1d. That the petitioners, as their cautioner in the executry, have offered Miss Cameron, Edinburgh, and have furnished to the Commissary-clerk a certificate by a Justice of the Peace as to her sufficiency. The clerk, however, whilst not objecting for any other reason, has stated that Miss Cameron cannot be accepted as cautioner, on the ground that it is the rule of the Commissary Court never to accept a female as cautioner. Miss Cameron is a maiden lady upwards of seventy years of age, and there is no probability of her being married. She is amply sufficient as cautioner. Miss Cameron has agreed to become cautioner, and if your Lordship does not accept her the petitioners will be put to considerable inconvenience and loss.”
The Commissary refused to order the Clerk of Court to accept of Miss Cameron as cautioner.
The petitioners appealed.
H. J. Moncreiff for them.
The Court affirmed the Commissary's judgment. They held that they ought not to interfere with the discretion which was vested in the clerk. If they did so he would be relieved of the responsibility which rested with him. They would not interfere with what was admitted to be the invariable practice of the Commissary Court. There was no hardship in refusing to appoint in this case, as Miss Cameron could easily make a contract with some one else to become cautioner, and relieve him of responsibility.
The Court reserved their opinion as to the general question, whether a woman could become a cautioner.
Solicitors: Agents for Petitioner— Murray, Beith & Murray, W.S.