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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Souter Petitioner [1890] ScotLR 28_89 (8 November 1890)
URL: http://www.bailii.org/scot/cases/ScotCS/1890/28SLR0089.html
Cite as: [1890] ScotLR 28_89, [1890] SLR 28_89
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SCOTTISH_SLR_Court_of_Session
Page: 89↓
Court of Session Inner House Second Division.
Facts:
Two petitions for the removal of a curator bonis to a person of unsound mind, and the appointment of a new curator bonis in his room, having been presented to the Court of Session, one before the Junior Lord Ordinary, and the other before the Second Division of the Court— held that under the Pupils Protection Act 1849, section 31, and the Distribution of Business Act 1857, sections 4 and 5, such a petition must be brought in the first instance before the Junior Lord Ordinary, subject to review by the Inner House, and that the petition presented before the Second Division was therefore incompetent.
By the Pupils Protection Act 1849 (12 and 13 Vict. chap. 51), section 31, it is enacted “that the Court shall have power on cause shown to remove or accept the resignation of any tutor or curator coming under the provisions of this Act, and to appoint a factor loco tutoris or curator bonis in his room.” By the interpretation clause (sec. 1) it is enacted that the expression “Court” shall mean “either Division of the Court of Session,” and the word “curator” shall mean “any person who after the passing of this Act shall be served as curator to any insane person or idiot.”
By the Distribution of Business Act 1857 (20 and 21 Vict. cap. 56), section 4, it is enacted—“All summary petitions and applications to the Lords of Council and Session
Page: 90↓
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.” … (5) “all petitions, applications, and reports under the Pupils Protection Act.” By section 5 of the same Act it is provided—“The Lord Ordinary, before whom any such petition, application, or report should be enrolled or brought, shall have full power to decide on and dispose of the same … and his judgment on the merits shall be subject to review.” On 29th August 1890 Robert Finlay, S.S.C., presented a petition in the Bill Chamber for the removal of Peter Couper, accountant, Edinburgh, from the office of curator bonis to John Souter, an inmate of the Royal Edinburgh Asylum, to which office he had been appointed by the Court on 12th June 1877, and for the appointment in his room of Robert Cockburn Millar, C.A., or failing him Andrew Dodds Fair-bairn, C. A. This petition was served among others on Mrs Margaret Souter, the wife of John Souter, but no answers were lodged by her.
The Lord Ordinary on the Bills not being satisfied that an application to remove a curator bonis could be entertained by him, declined to remove Mr Couper from his office, but on 13th September 1890 he appointed Mr Millar to the office of curator bonis ad interim.
After the Winter Session of the Court commenced, this petition came in usual course before the Junior Lord Ordinary, who on 23rd October 1890 ordered service of the petition on Mr Souter, and also on Mr Couper.
Meanwhile, on 15th October 1890, Mrs Margaret Souter presented a petition to the Second Division of the Court for the removal of Mr Couper as curator bonis to Mr Souter, and the appointment in his room of Charles John Munro, C.A. Answers to this petition for Mr Finlay and Mr Millar were lodged on 27th October 1890, in which they maintained, inter alia, that the application already made to the Lord Ordinary was the proper course to adopt under the Pupils Protection and Distribution of Business Acts.
Argued for petitioner—This was a case of a beneficiary petitioning to remove a curator bonis because he was an absconding bankrupt. In the cases founded on by the other side the curator bonis himself applied for his recal. This case was different; it was analogous to a petition for removal of trustees— Petition Mitchell, July 20, 1864, 2 Macph. 1378; Petition Kyle, June 10, 1862, 24 D. 1083, opinion of Lord Justice-Clerk (Inglis), 1085; Petition Rhind, July 20, 1875, 2 R. 1002.
Argued for respondent — This petition under the statute was incompetent in the Inner House— Petition Kyle, June 10, 1862, 24 D. 1084; Petition Tweedie, December 8, 1886, 14 R. 212; Petition Masterton, May 14, 1887, 14 R. 712.
At advising—
By the Pupils Protection Act 1849 (12 and 13 Vict. c. 51) it is enacted that certain proceedings, including petitions for the removal of a curator bonis to a person under mental incapacity and the appointment of another in his room, are to be taken before the Court of Session, which is interpreted to mean “either Division of the Court of Session.” If that still remained law no question could be raised as to the proper tribunal. But thereafter the Distribution of Business Act 1857 was passed, and the question arises whether that Act does not take away the primary jurisdiction of the Division and make it imperative to bring such petitions as this in the first instance before the Junior Lord Ordinary. There can be no doubt that clauses 4 and 5 refer to this matter. Clause 4 is quite distinct. “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.” Under the particular headings following, the fifth includes “all petitions, applications, and reports under the Act of the 12 and 13 Vict. c. 51, entituled an Act for the better protection of the property of pupils, absent persons, and persons under mental incapacity in Scotland.” This enactment is distinct and carefully framed so as to admit of no mistake. It declares as specifically as possible that proceedings under 12 and 13 Vict. c. 51, are to be taken in the first place before the Junior Lord Ordinary. This judgment is of course open to review by the Inner House.
I have therefore come to the conclusion that the petition in the Inner House is not competent, and that that in the Outer House is alone competent. As the matter seems to have been one of doubtful practice I think no expenses should be allowed.
Page: 91↓
Counsel for the Petitioner— Salvesen. Agents— Sim & Garden, S.S.C.
Counsel for the Respondents— Goudy. Agent— Robert Finlay, S.S.C.