Scottish Court of Session Decisions

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Cite as: [1922] SLR 538, [1922] ScotLR 538

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SCOTTISH_SLR_Court_of_Session

Page: 538↓

Court of Session Inner House First Division.

Saturday, July 15. 1922.

[ Lord Ashmore, Ordinary.

59 SLR 538

Carmont and Another Petitioners.

Subject_1Process
Subject_2Petition
Subject_3Competency
Subject_4Nobile Officium — Petition Amended in Inner House — Amendment Rendering Petition Competent in First Instance only before the Junior Lord Ordinary — Power of Inner House to Deal with Petition so Amended — Distribution of Business Act 1857 (20 and 21 Vict. cap. 56), sec. 4.
Facts:

Where a petition is competently brought before the Inner House on a reclaiming note the Distribution of Business Act does not impose any restraint on the power of the Court to allow an amendment designed to facilitate an appeal to the nobile officium, even though the effect of that amendment is to change the petition into one which could only have been presented in the first instance to the Junior Lord Ordinary.

A petition under the Trusts (Scotland) Act 1921 for the appointment of a judicial factor or new trustees was amended on a reclaiming note in the Inner House by deletion of the references to the Trusts (Scotland) Act 1921 and by the addition of a crave for sequestration. Held that the amendment did not render the petition incompetent as one which should in the first instance have been presented to the Junior Lord Ordinary.

Headnote:

The Distribution of Business Act 1857 enacts—Section 4—“… 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.…”

John Carmont, advocate, Edinburgh, and another, a majority of the Trustees of No. 2 Branch of the Edinburgh Division of the Comrades of the Great War Association, petitioners, presented a petition under the Trusts (Scotland) Act 1921 for appointment of a judicial factor upon heritable property at 22 Forth Street, Edinburgh, or for the appointment of a new trustee or trustees, for authority to resign, and for exoneration and discharge. The petition did not contain a. crave for sequestration of the estate. Answers were lodged for Lawrence Walls and others, members of No. 2 Branch, respondents, and minutes approving the petition were lodged on behalf of the British Legion and the United Services Fund.

On 18th March the Lord Ordinary ( Ashmore) appointed a judicial factor and authorised the petitioners to resign.

The respondents reclaimed, and argued that the petition was incompetent under the Trust Act 1921 in respect that there was another trustee who was not a party to it and who had not resigned, and that it should have been presented in the first instance to the Junior Lord Ordinary, and could not be granted without sequestration of the estate.

The Court continued the cause to allow the petitioners an opportunity of amending the petition, and on 22nd June 1922 allowed the petition to be amended and granted warrant for service upon John Stewart, Leith, the other trustee, and upon the Comrades of the Great War No. 2 Branch, Limited. The amendment consisted of deleting from the petition all reference to the Trusts (Scotland) Act 1921 and of adding to the prayer a crave for sequestration of the estate held by the Trustees.

Page: 539↓

Answers were lodged by John Stewart the other trustee, who maintained that the petition was incompetent.

On 15th July 1922 counsel were heard on the petition as amended and the answers.

Argued for the reclaimers—The petition as amended was now one which could only be dealt with in the first instance by the Junior Lord Ordinary—Distribution of Business Act 1857, sec. 4; Rhind v. Shlach, 1875, 2 R. 1002, 12 S.L.R. 642; Smith v. Smith, 1892, 20 R. 27, 30 S.L.R. 59; Gaff and Others, Petitioners, 1893, 20 R. 825, 30 S.L.R. 758. It should therefore be remitted to the junior Lord Ordinary or be be dismissed. The Inner House could not deal with it without consent of parties— Mitchell v. Mitchell, 1864, 2 Macph. 1378. The Court should not deal with the petition in the exercise of its nobile officium. This was only done when there was no other remedy.

Counsel for the petitioners was not called on.

Judgment:

Lord President—The petition as originally framed was properly presented to the Lord Ordinary in accordance with the Trusts Act (11 and 12 Geo. V, cap. 58), and was competently brought before this Division on a reclaiming note against the Lord Ordinary's interlocutor. In the course of the hearing, however, it became apparent that in the rather unusual circumstances presented by the case the objects of the petition could not be secured without resort to the common law powers of the Court under its nobile officium, and the petitioners having proposed to amend the petition we gave them an opportunity of doing so. The amendment took the form of deleting the reference to the Trusts Act from the narrative and adding a crave for sequestration to the prayer. No objection was tabled to this amendment and it was allowed. But it is now maintained that in consequence of the amendment having been made the petition has ceased to be competent before this Division. The argument is that under the Distribution of Business Act 1857 a petition of the character which this petition has come to assume in consequence of the amendment must be presented in the first instance to the Junior Lord Ordinary. I think this objection must be repelled. In the first place the objection comes too late. If it had been a good one it should have been tabled on the petitioner's motion to amend. But in the second place it would be contrary to all reason and principle to hold that in a proceeding competently before the Division on reclaiming note the Distribution of Business Act implies any restraint on the power of the Division to allow any amendment designed to facilitate appeal to the nobile officium, even though—had the petition been originally framed for that purpose—it would have had to be presented in the first instance to the junior Lord Ordinary.

Lord Mackenzie—I concur.

Lord Skerrington—I concur.

Lord Cullen did not hear the case.

The Court recalled the interlocutor of the Lord Ordinary, sequestrated the estate, and appointed a judicial factor.

Counsel:

Counsel for the Petitioners— Patrick. Agents— Strathern & Blair, W.S.

Counsel for the Minuters the British Legion— Burns. Agents— Strathern & Blair, W.S.

Counsel for the Respondents— Mitchell, K.C.— Maclaren. Agent— W. R. Mackersy, W.S.

Counsel for the Minuters the United Services Fund— Menzies. Agents— Hutton, Jack, & Crawford, S.S.C.
1922