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Scottish Court of Session Decisions >>
Merchant Company and Trades of Edinburgh v Magistrates. [1765] Mor 7448 (9 August 1765)
URL: http://www.bailii.org/scot/cases/ScotCS/1765/Mor1807448-170.html Cite as:
[1765] Mor 7448
Merchant Company and Trades of Edinburgh v. Magistrates
Date: 9 August 1765 Case No. No 170.
The Founder of an Hospital appointed certain official persons to interpret the regulations he had made. Some of the offices had been suppressed, so that there did not remain a quorum of the nominees. The Court refused to interfere.
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George Heriot, founder of the hospital of that name in Edinburgh, having, by his will, given power to Walter Balcanqual, Dean of Rochester, to establish statutes for the administration of the hospital, ordained, inter alia, “That the Chancellor, the two Archbishops, the Lord President of the College of Justice, his Majesty's Advocate for the time being, shall have full power to interpret the same, and to determine all controversies arising about the interpretation; so that whatsoever any three of these five met together, and all parties interested being convened, shall declare in their consciences to come nearest the true meaning of these statutes, that, and nothing but that, shall be taken for the true meaning of the same, and in all points be observed.” The trades of Edinburgh having brought an action against the Magistrates, as administrators of that hospital, for feuing the hospital lands, as alleged contrary to the tenor of the deed of mortification, the pursuers argued, That as a quorum of these governors or interpreters of the hospital regulations did not now exist, the powers originally given them belonged to this Court as a court of equity, and vested with the same powers as the Roman Prætor and the Chancellor of England; and they therefore contended, That it was competent for this Court to prescribe instructions and limitations of the right of feuing exercised by the Magistrates, so as not to be prejudicial to the hospital. Answered for the Magistrates, 1mo, By the above clause of the will, the officers therein named have no other power that to interpret the statutes, but not to make regulations; 2do, This Court, as in the case of the failure of tutors, could at the most only authorise the remaining nominees to act as a quorum; 3tio, This Court never employs its equitable powers but in cases of necessity.——The Lords found they had no power of making the limitations required.
