Scottish Court of Session Decisions

The Act 20 and 21 Vict. c. 56, section 4, enacts that “All summary petitions and applications to the Lords of Council and Session which are not incident to actions or causes actually depending at the time of presenting the same shall be brought before the Junior Lord Ordinary officiating in the Outer House, who shall deal therewith and dispose thereof as to him shall seem just, and in particular all petitions and applications falling under any of the descriptions following shall be so enrolled before, and dealt with and disposed of by, the Junior Lord Ordinary, and shall not be taken in the first instance before either of the two Divisions of the Court, viz.—.. . (4) Petitions and applications for the appointment of judicial factors, factors loco tutoris or loco absentis, or curators, bonis, or by any such factors or curators for extraordinary or special powers, or for exoneration or discharge.”. . .

This petition for recal of the appointment of curator bonis to a lunatic, who was stated in the petition to have recovered, and to be capable of managing his own affairs, was presented in the first instance in the Inner House. The curator had been appointed by the Junior Lord Ordinary on January 6, 1886.

On the petitioner craving order for intimation and service, the competency of presenting such an application in the first instance was doubted. It was argued by the petitioner that the Court of Session (Scotland) Act 1857 did not expressly authorise the Junior Lord Ordinary to deal with applications for recal as distinguished from applications for exoneration and discharge— Simpson, Petitioner, Jan. 11, 1860, 22 D. 350; Lawson, Petitioner, Dec. 19, 1863, 2 Macph. 355; and these unreported cases— M'Innes, Nov. 13, 1867; Milne, Nov. 13, 1867. The petition was therefore properly presented in the Inner House.

The Court ordered intimation, and thereafter on resuming consideration of the petition, no answers to which were lodged, recalled the appointment as craved.