Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0550.html
Cite as: [1876] ScotLR 13_550, [1876] SLR 13_550

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SCOTTISH_SLR_Court_of_Session

Page: 550↓

Court of Session Inner House First Division.

Thursday, June 15. 1876.

13 SLR 550

Special Case for The Trustees of James Park and Others.

Subject_1Competency
Subject_2Special Case
Subject_3Tutor and Pupil.
Facts:

Held that the Court cannot entertain a Special Case between parties who appear for their own interest and also as tutors for minor children with an adverse interest.

Observed ( per Lord President) that a Special Case is a contract binding parties to a certain statement of facts, and that therefore parties who are legally unable to contract cannot enter into a Special Case.

Headnote:

This was a Special Case for James Park, John Park, and Thomas Park, nephews and trustees of the late James Park, merchant tailor and shipowner in Fraserburgh, of the first part; William Park, also a nephew of the late James Park, of the second part; and the said James, John, and Thomas Park, tutors appointed by the said de-ceased James Park to Douglas James Park, Robert Kidd Officer Park, and Jane Rosamond Park, children of the marriage between the said William Park and Mrs Janet Kidd or Park, of the third part—for the opinion and judgment of the Court on certain provisions of a trust-disposition and settlement executed by the deceased James Park. When the case was on the Single Bills—

Judgment:

The Lord President said—The Court are of opinion that they cannot entertain this Special Case. The parties are—first, the testamentary trustees of the late James Park, merchant tailor and shipowner in Fraserburgh, and these gentlemen are three of the nephews of the late Mr Park; the second party is William Park, another nephew of the testator; and the third parties are the same individuals as the first parties, in the separate character of tutors appointed by the testator to certain pupil children. Now, there is an adverse

Page: 551↓

interest between the first parties and the second party; there is an adverse interest between the first parties and the third parties, and also between the second party and the third parties.

The effect of a Special Case, which is a contract between the parties, is to bind these parties to a certain statement of facts. We cannot entertain a case of contract between parties who cannot in law contract. If the point must be settled now, the parties must have recourse to the usual method of settling it, by raising an action of declarator in the ordinary form.

Lords Deas, Lords Ardmillan, and Lords Mure concurred, and the case was dismissed.

Counsel:

Counsel for First Parties— Kinnear. Agents— H. & H. Tod, W.S.

Counsel for Second Party— Adam. Agents— Tawse & Bonar, W.S.

Counsel for Third Parties— Lorimer. Agents— H. & H. Tod, W.S.
1876

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