Scottish Court of Session Decisions

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Cite as: [1914] ScotLR 401, [1914] SLR 401

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SCOTTISH_SLR_Court_of_Session

Page: 401↓

Court of Session Inner House Second Division.

Wednesday, March 11. 1914.

51 SLR 401

Ross

v.

Ross.

Subject_1Poor's Roll
Subject_2Admission
Subject_3Poverty
Subject_4Absence of Objections by Adverse Party — Power of Court to Refuse Admission — Codifying Act of Sederunt, A, x, 6.
Facts:

The Codifying Act of Sederunt, A, x, 6, enacts—“On the lapse of eight days after the date of insertion in the minute book, or of four days next after publication of the printed minute book containing said intimation, if the paper shall have been lodged during vacation or recess, the party's agent shall box a note to the Lord President of the Division, simply stating the names and
Page: 402↓
designations of the parties, and craving a remit to the reporters on the probabilis causa; whereupon the Court may, on hearing any objections, either refuse the application de piano or remit to the reporters, who shall thereupon consider the party's case, hear all objections, and report whether the applicant has a probabilis causa litigandi, and, should the remit so require, whether he otherwise merits the benefit of the poor's roll.…”

A man applied for admission to the poor's roll, and lodged a certificate of poverty which stated that his weekly earnings were 31s. No appearance was entered for the adverse party. The Court remitted to the reporters probabilis causa to inquire whether the applicant had a probable cause of action, and on their reporting that he had, admitted him, holding that it could not ex proprio motu refuse admittance on the ground of his circumstances.

Observed per Lord Salvesen—“I desire to say, for my own part, that I think the sooner the abuse of the poor's roll, of which this case is an illustration, is remedied so that we can at any time take up the question of the suitability of the person for admission to the poor's roll, the better.”

Headnote:

David Ross presented an application in ordinary form for admission to the poor's roll in order to carry on a litigation against his wife, and lodged with it a certificate of poverty in terms of the Codifying Act of Sederunt, A, x. The certificate stated that the applicant's weekly earnings were 31s.

On 21st January 1914, no appearance having been made by the adverse party, the Court made the usual remit to the reporters probabilis causa litigandi to inquire and report whether the applicant had a probabilis causa litigandi.

On 24th February 1914 the reporters reported that the applicant had a probable cause, but appended the following note to their report:—“Had a special remit been made in this case, the reporters would have refused the application on the ground that the applicants circumstances are not such as to entitle him to the benefits of the poor's roll.”

On 11th March 1914, on the case appearing in the Single Bills, counsel for the applicant moved that the applicant should be admitted to the poor's roll, and argued—The Court could only remit the question of the applicant's unsuitability for the poor's roll if the adverse party objected to the application on that ground. The Court could not make the remit ex proprio motu, but was bound to admit the applicant, since he had lodged a certificate of poverty in terms of the Codifying Act of Sederunt and the reporters had reported that he had a probable cause of action—Codifying Act of Sederunt A, x, 6; Act of Sederunt, 21st December 1842, section 5; Act of Sederunt, 16th June 1819, section 6.

Judgment:

Lord Justice-Clerk—In this case the Court had nothing before them when they made the remit except the application for admission to the poor's roll, in which the applicant asked that his case be remitted to the reporters on probabilis causa. Now the matter which the reporters had to inquire into, and on which alone they had to report, was the question of probable cause. I do not blame them at all if they came to the conclusion, as expressed in this note, for calling our attention to the circumstances of the applicant, in case the Court might see fit to hold in law that he could not get on the poor's roll because he was not qualified for it. But I do not see how we can interfere in that matter.

When the case comes up in which the applicant for the poor's roll asks a remit to the probabilis causa reporters, to see whether he has a good case prima facie for litigating, and the adverse party does not appear and object to the application on the ground that the applicant's circumstances do not entitle him to admission to the roll, the sole question remitted for the reporters' consideration is—Is there a probabilis causa? and when the report comes back to us stating that there is a probabilis causa, the adverse party having taken no steps to have it ascertained whether the certificate of poverty is exact or not, or whether the party is in such circumstances that he ought not to be put on the poor's roll although he has a probabilis causa, I think we have no power then to deal with the question of the applicant's means. We have power, if the adverse party appears at the Bar to object before the case is remitted to the probabilis causa reporters, to take their assistance upon the question of whether there is poverty or not by making a special remit. It is often done. But here there was no such objection. The ordinary remit was made, the applicant has got a report that there is a probabilis causa, and I do not see that we can now do anything but admit him to the poor's roll.

Lord Dundas—I agree.

Lord Salvesen—On the regulations as at present existing I am forced to concur in the opinion which your Lordship has just delivered, although I do so with reluctance.

It is quite obvious that under the present system parties may be admitted to the poor's roll although their circumstances are such that they are not entitled to be so admitted. The condition of our considering, or directing others to consider, the question of suitability for admission is that objection shall be taken in Single Bills when the application for remit to the reorters is made. Well, if we have tied our hands in that way by our own regulations, it is obvious that this applicant is entitled to take the benefit of these regulations as they at present exist. But I desire to say, for my own part, that I think the sooner the abuse of the poor's roll, of which this case is an illustration, is remedied so that we can at any time take up the question of the suitability of the person for admission to the poor's roll, the better.

Page: 403↓

Lord Guthrie—I am of the same opinion. Whether there should not be some change in the earliest stage of such proceedings as those before us, namely, in the practice of granting a certificate of poverty without any consideration whatever of what the amount may be that is being earned by the applicant is a question not directly before us. But so far as we are at present concerned it is quite clear that we should not be as we now are in a position of helplessness unless somebody appears to state objections. Whatever papers disclose, apparently we can do nothing unless there is an objector.

The larger question that Mr Crawford referred to, namely, whether the present scale of income that will entitle an applicant to be put upon the poor's roll, which was fixed at a time when money was much more valuable than it is now, should not be altered, may require also to be considered, but is not directly before us now.

The Court found the applicant entitled to the benefit of the poor's roll, and remitted to counsel and agent for the poor to conduct the case.

Counsel:

Counsel for the Applicant— Crawford. Agent— W. Macduff Urquhart, S.S.C.
1914