Scottish Court of Session Decisions

Lord Trayner—This is an application for the benefit of the poor's roll, and as the reporters on probabilis causa are divided in opinion, the question is whether the applicant is entitled to the privilege which he seeks.

On the authorities cited to us at the discussion, it appears that the Court has laid down what I think I may venture to call a rule, that where the judgments of the Sheriff and the Sheriff—Substitute are against the applicant, and the reporters are divided in opinion, the application for admission to the benefits of the poor's roll is refused.

That rule appears to me to be a sound rule, with which I would not interfere. This case, however, is not exactly in the position of the cases to which the rule has hitherto been applied, because the applicant has appealed directly from the Sheriff-Substitute, who has found his case to be irrelevant, and has not taken advantage of the appeal to the Sheriff, which was open to him. I think that an applicant who does not avail himself of the right to appeal to the Sheriff must be held to occupy the same position as if he had exhausted the resources of the Inferior Courts—as if he had appealed to the Sheriff, who had affirmed the judgment of his Substitute. If the Sheriff on appeal had differed from the Sheriff-Substitute, there would have been no need of further appeal. The pursuer would then have had a judgment to the effect that his case was relevant. If the Sheriff had agreed with the Sheriff-Substitute and held the action irrelevant, then the pursuer would have been within the rule which I have mentioned. But as the applicant has not taken advantage of the appeal afforded by the Sheriff Court procedure, I think he must be taken as if he acknowledged that the Sheriff would on appeal have been of the same opinion as his Substitute. I am accordingly of opinion that the application should be refused.