Scottish Court of Session Decisions

The procedure connected with applications for admission to the poor's roll is regulated by Act of Sederunt of 21st December 1842.

Section 5 provides as follows:—[After certain preliminary proceedings]—“The party's agent shall box a note to the Lord President

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of the Division, simply stating the names and designations of the parties, and craving a remit to the reporters on the probabilis causa, on moving which the Court may, on hearing any objections, either refuse the application de plano or remit to the reporters, who, on considering the party's 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—said report not to he made sooner than six days from and after the date of the remit except with consent of the adverse party.”

Section 11 provides—“That when the Court shall remit an application for the poor's roll to the advocates and agents appointed to consider and report on the probabilis causa litigandi as above, it shall be the duty of the Writer to the Signet or solicitor presenting the application to procure from the applicant, or his former agent, information as to the circumstances of the case, and to draw out a memorial thereof and lay the same before the reporters for enabling them to make their report thereon, and shall at the same time intimate the lodgment thereof to the adverse party or his agent by letter post paid; and if further evidence or explanation appear to be necessary either as to the property or character of the applicant, or circumstances of the case, the agent presenting the application shall direct and assist the applicant in procuring the same.”

Mrs Cant applied for admission to the poor's roll in order to prosecute an action against Pirnie's Trustees for reduction of a trust-disposition and settlement on the ground, inter alia, of fraud. Her application was remitted to the reporters on 4th July 1906, who on 13th July 1906 reported as follows:—“We, the reporters on the probabilis causa litigandi of applicants for the benefit of the poor's roll, having, in virtue of the preceding remit, considered the application, beg humbly to report that in our opinion the applicant has not a probabilis causa litigandi.”

The reporters appended the following note:—“In this case the applicant lodged a memorial for the consideration of the reporters, but did not lodge precognitions. It has been for a long time the practice, in cases turning on questions of fact, to require in addition to, or in place of, a memorial, such precognitions of witnesses as will establish a probabilis causa litigandi. The reporters were of opinion that in this case, in addition to a memorial, further evidence appeared to be necessary as to the circumstances of the case (Act of Sederunt, 21st December, 1842, sec. 11), and requested that further evidence should be procured. The agent for the applicant thereupon tendered precognitions of a considerable number of witnesses, but subject to the condition that they should not be shown to the other side. It has for long been the practice of the reporters to allow any party interested, who desired to oppose the admission of the applicant to the benefit of the poor's-roll, to see the memorial and other evidence tendered to the reporters by the applicant, and consequently the reporters were of opinion that they were not entitled to consider precognitions tendered subject to the condition of being seen only by the reporters. They were also of opinion that without the precognitions the applicant had not shown a probabilis causa litigandi. They have reported accordingly, but wish to explain that they have done so for the reasons stated in this note.”

Thereafter Mrs Cant presented a note to the Lord Justice-Clerk craving him “to move the Court of new to remit the case to the reporters to inquire and report whether the applicant has a probabilis causa litigandi, and otherwise merits the benefit of the poor's-roll.”

In the note she submitted “that the reporters, if they called for precognitions, were either bound or entitled to consider the same although their tender was subject to the condition that the defenders should not see them. In refusing to consider the said precognitions as aforesaid the reporters were not acting in accordance with the provisions of the said Act of Sederunt.”

When the note appeared in the Single Bills counsel for Mrs Cant, the applicant, submitted the above contention.

Counsel for the objectors, Pirnie's Trustees, were not called on for a reply.