Scottish Court of Session Decisions

Lord Adam—I am of the same opinion. The Dean of Guild has both administrative and judicial functions, and I can quite understand that in the vast majority of applications the town, or the opposite party, is entitled to rely on the knowledge of the Dean of Guild, assisted if necessary by the advice of the burgh engineer, properly disposing of them, and that it is quite unnecessary for either party to interfere. But that is not the course which has been followed here, because we are informed by counsel for the town that the town did object to the application being granted at the first. If that is so, I agree that it is not fair that the town, having a case to submit, should in the first instance lie by and take the chance of the decision of the Dean of Guild being in their favour, and should not come forward to state their answer to the application until the other party has been obliged to come here.

I agree that we should allow the answers, and I think further that in this class of case we are entitled to have the judgment of the Dean of Guild and to review it, and that the parties should not come here in the first instance. I asked whether the questions raised could be tried in the Dean of Guild Court, or whether the case was such as would from its nature come back to us, and I was informed that it was not a case of that kind.

On the whole matter, therefore, I agree with your Lordship.

Lord M'Laren—I should have been content, having regard to the practice of the other Division, to hear this case on the petition and answers as stated, and, if a practical question were found to exist, then to remit it for the decision of the Dean of Guild. But the question of making up a record is a matter for the discretion of the Court, and no doubt the course approved by your Lordships is a convenient one to adopt, and will not have the effect of preventing the parties from hereafter obtaining a judgment of this Court on the construction of the statute.

Lord Kinnear—I concur. The considerations that have weighed with me are, first, that the answers, as we have been informed by the counsel for the respondents, raise questions for the judicial determination of the Dean of Guild, and within his jurisdiction, so that after the decision in the Court of first instance, the case, if it comes here at all, will come only for review; and secondly, that the counsel for the magistrates informs us that the objections taken in the answers were intended to be taken at the original proceedings, and that the respondents appeared and verbally opposed the petition on these very grounds. But I must observe that this verbal opposition does not appear to have been made known to the other party. Accordingly the magistrates represent themselves as having obtained a judgment on questions which they have abstained from raising in any formal manner until they came to this Court. I agree that this is not a convenient course of procedure, nor altogether fair to the petitioners. The petitioners are entitled to have the Dean of Guild's judgment upon the questions that are raised in the answers; and we on the other hand ought to be informed with more certainty than we are at present whether the deliverance submitted to review was or was not a judgment pronounced after hearing parties.