Scottish Court of Session Decisions

The Trusts (Scotland) Act 1867 provides by section 16—“Applications to the Court under the authority of this Act shall be by petition addressed to the Court, and shall be brought in the first instance before one of the Lords Ordinary officiating in the Outer House, who may direct such intimation and service thereof, and such investigation or inquiry, as he may think fit, and the power of the Lord Ordinary before whom the petition is enrolled may be exercised by the Lord Ordinary on the Bills during vacation; and all such petitions shall, as respects procedure, disposal, and review, be subject to the same rules and regulations as are enacted with respect to petitions coming before the Junior Lord Ordinary in virtue of the Act 20 and 21 Vict. c. 56.”…

On 12th April 1883 W. G. A. Pepper Staveley and Miss Pepper Staveley, his daughter, presented a petition under the Trusts (Scotland) Act 1867 for the appointment of new trustees on a lapsed trust in which they were the beneficiaries, and for warrant to complete title in name of the trustees to be appointed. The attention of the Lord Ordinary was directed to a decision of Lord Gifford in 1870 to the effect that such petitions could not proceed in vacation unless they had been first brought before a Lord Ordinary during session andintimation and service ordered by him.

The Lord Ordinary ( Lord Shand) officiating on the Bills ordered intimation and service of the petition.

“ Note.—I think it is too narrow a view of the terms of section 16 of the Trusts (Scotland) Act 1867 (30 and 31 Vict. c. 97) to hold that the Lord Ordinary on the Bills can only deal with applications which have been presented during session, and so cannot even order intimation and service of a petition presented in virtue of that section.

Such a reading of the Act greatly restricts its usefulness, and for no object that I can discover, and it ought not to be adopted unless the language used compels this. And prima facie it would seem to be a remarkable state of matters that the Lord Ordinary on the Bills should have the power to appoint trustees and to authorise them to complete titles or to exercise the other powers which under the statute the Court may confer, and yet should be powerless to give the mere formal order of appointing intimation and service.

The petition is in all cases addressed to the Court—that is, to the Lords of Council and Session—but although so addressed it is dealt with and disposed of by the Lord Ordinary in session, and by the Lord Ordinary on the Bills in vacation. The 16th section of the statute provides that the petition, though addressed to the Lords of Council and Session, ‘shall be brought in the first instance before one of the Lords Ordinary officiating in the Outer House, and … the power of the Lord Ordinary before whom the petition is enrolled may be exercised by the Lord Ordinary on the Bills during vacation.’ The words ‘shall be brought in the first instance before one of the Lords Ordinary officiating in the Outer House’ are used to make it clear that the petition is not an Inner House proceeding; and the whole enactment is in terms which show that the power of the Lord Ordinary and of the Lord Ordinary on the Bills is not derived from the Inner House as if on a remit, but is an original jurisdiction directly conferred by the statute.

It is said the words ‘is enrolled’ imply that

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an enrolment before a Lord Ordinary in session is a condition precedent of the exercise of any power under the Act by the Lord Ordinary on the Bills. I do not think so. It is something against that view that no good reason for such a provision can be suggested, and that this reading seriously limits the usefulness of the enactment. In my opinion the true meaning of the words ‘the power of the Lord Ordinary before whom the petition is enrolled’ is, ‘the power of the Lord Ordinary before whom the petition is or might be enrolled (though addressed to the Court) may be exercised by the Lord Ordinary on the Bills during vacation.’ Under these powers I hold that the mere ordering of intimation and service is included, and I have invariably acted on this view during the last ten years. Under the larger power of disposing of the merits of applications under section 16 of the statute, I think the minor power of ordering intimation and service is included, and I do not think the language of the section compels or warrants an opposite view.

What I have said applies also to the case of appointment of judicial factors, and giving them power to make up titles, though not to the applications of such factors for other special powers. See 30 and 31 Vict. c. 97, secs. 15 and 16; 31 and 32 Vict. c. 101, sec. 24; and 32 and 33 Vict, c. 116, sec. 3.”