Scottish Court of Session Decisions

The Court of Session Act 1857 (20 and 21 Vict. cap. 56), section 4, enacts—“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. … (5) All petitions, applications, and reports, under the Act of the twelfth and thirteenth Victoria, chapter 51, entituled an Act for the better protection of the property of pupils, absent persons, and persons under mental incapacity in Scotland.”

The Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), section 12, enacts—“In Scotland tutors, being administrators-in-law, tutors-nominate, and guardians appointed or acting in terms of this Act, who shall by virtue of their office administer the estate of any pupil, shall be deemed to be tutors within the meaning of an Act passed in the twelfth and thirteenth years of the reign of Her Majesty, intituled an Act for the better protection of the property of pupils, absent persons, and persons under mental incapacity in Scotland, and shall be subject to the provisions thereof. …”

On 23rd October 1909 John Graham Dow, tutor-nominate to Walter Dow, acting under the general disposition and settlement of the deceased Walter Dow junior (father of the above-mentioned Walter Dow), presented a petition to the Second Division of the Court of Session for authority to sell certain heritable subjects belonging to the ward.

On 19th November 1909 the Court remitted to Mr Charles Young, W.S., to inquire into the regularity of the proceedings, and to report.

The reporter reported on the procedure as follows—“The reporter has doubt as to the competency of the procedure followed in this petition. It has been presented to your Lordships presumably under the nobile officium of the Court, but it would appear that the proper course would have been to go to the Junior Lord Ordinary on a report by the Accountant of Court, in terms of the Pupils Protection Act of 1849, the Court of Session Act 1857, and the Guardianship of Infants Act of 1886. In this connection the reporter would refer your Lordships to the case of Souter, 1890, 18 R. 86, 28 S.L.R. 89, where the Judges of your Lordships' Division, after consultation with the Judges of the First Division, dismissed a petition for the removal of a curator bonis and appointment of a new curator bonis as incompetent in the Inner House. … In view of the Court of Session Act and the above case it appears to the reporter that the present petition should have been presented to the Junior Lord Ordinary.

“The reporter would, however, ask your Lordships to consider, along with the case of Souter, the case of Logan, 1897, 25 R. 51.”

In the Single Bills counsel for the petitioner founded on the case of Logan, November 9, 1897, 25 R. 51, 35 S.L.R. 51, and two unreported cases, and argued that the competency of presenting such petitions in the Inner House was supported by the practice in regard to them.