Scottish Court of Session Decisions

At advising—

Lord President—I think the rule laid down in the case of Allan in the Second Division on the construction of the Act of Sederunt of 1842 is the sound rule, and I am not for disturbing it. The Act of Sederunt provides that the applicant cannot come here at all until he has got a certificate from the Kirk Session, and in order that he may obtain this certificate the 4th section requires—[ His Lordship here read the section as above, and also the 5th section down to “craving a remit to the reporters on the probabilis causa”]. Now, I think the meaning of all this is that the adverse party, as he is called, is to have abundant notice, first, of the declaration before the Kirk Session, in order that he may, if he pleases, attend there; and secondly, of the time at which the Court are to be moved to remit the application to the reporters on the probabilis causa, in order that he may attend on this second occasion and state objections. The Act then goes on to provide that “on moving which, the Court may, on hearing objections, either refuse the application de plano, or remit to the reporters, who on considering the parties' case and hearing all objections, shall report whether the applicant has a probabilis causa litigandi, and otherwise merits the benefit of the poor's roll.” It appears to me that the reporters will report either simply on the probabilis causa, or on other matters relating to the merits of the application for the benefit of the poor roll, according to the terms of the remit which is made to them. It is not intended that they shall go beyond the terms of the remit when the remit is merely to inquire into the probabilis causa. The adverse party has had ample opportunity to state his objections when the case was first moved in Court, and it would be highly inexpedient to go back upon these objections after the reporters have taken the trouble—and no small trouble it is sometimes—of considering the merits of the applicant's case and his chance of success. I think the rule laid down in Allan's case is not only in perfect consistency with the Act of Sederunt, but is also in accordance with the practice, which was well settled even before the case of Allan, for in that case the reporters on the probabilis causa in their report to the Court stated—“An objection was stated to the reporters that the circumstances of the applicant do not entitle him to the benefit of the poor's roll; but the reporters, following what they understood to have been the practice for many years, declined to consider it, as such an objection is usually stated and disposed of before the remit to the reporters is made.” Now, taking that report, and the Act of Sederunt, and the practice, the Judges expressed themselves thus:—Lord Neaves observed—“This objection comes too late. Notice is given in the minute-book for the express purpose that objections may be stated when the case appears in the Single Bills. The change in the Act of Sederunt of 1842 from that of 1819 was made in order to alter the system formerly pursued.” And Lord Cowan observed—“I think it very important that the present practice should be adhered to. According to it an opportunity for objecting on the ground of the poverty not being established is always given when the case is in the Single Bills, notwithstanding the power which the adverse party has under the Act of Sederunt to appear before the minister and elders… . But when no appearance is made, and no good ground is stated to account for this, I am very clear that the objection on the ground of poverty not being proved comes too late.” It is quite true, as the objectors has observed, that parties have been heard in other cases after the remit to the reporters, but these were cases in which the objection does not seem to have been taken, and the Court did not advert to the matter. It must now, however, be distinctly understood that objections must be stated at the first stage when the applicant comes to the Court.

The other Judges concurred.