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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hunter v. Clark [1874] ScotLR 11_620 (25 June 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0620.html
Cite as: [1874] SLR 11_620, [1874] ScotLR 11_620
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SCOTTISH_SLR_Court_of_Session
Page: 620↓
Court of Session Inner House First Division.
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v.
Facts:
The pursuer of an action was with her family in receipt of parochial relief to the extent of 7s. a-week. She did not attempt to get upon the poor's roll, but obtained counsel and agent to conduct her case. The defender pleaded that she was bound to find caution. The Court sisted proceedings to allow the pursuer an opportunity of being put upon the poor's roll.
This action was brought by Mrs Janet Henderson or Hunter, against Mr Andrew Clark, S.S.C., Leith, for £250 sterling, in the name of damages and solatium. The pursuer averred that being lawfully in possession of certain furniture of which she had got the use, she was violently dispossessed of it to her loss and damage, and that it was taken away and sold by the defender without any authority. It appeared that the pursuer and her family had for several years been in receipt of parochial relief to the amount of 7s. a-week.
The defender's fifth plea in law was—“The pursuer being a pauper in receipt of parochial relief, and not suing in forma pauperis, is bound to find caution for expenses before suing.”
On 19th March 1874, the Lord Ordinary repelled the fifth plea in law stated by the defender.
In a subjoined Note his Lordship said:—
“The question, whether the pursuer shall be ordained to find caution for expenses is one of discretion for the Court, and the Lord Ordinary does not think the case is one in which such an order should be granted. The alleged disposition omnium bonorum by the pursuer, dated in 1864, is not signed by her, and it is blank in the names of the disponees, and cannot be regarded as an effectual deed. The only fact on which the defender's claim to caution rests therefore is, that the pursuer is on the poor's roll; and, in the circumstances as alleged, the Lord Ordinary is of opinion that this is not a fact sufficient to warrant an order for caution being pronounced.”
The defender appealed.
Argued for him—The pursuer's proper course would have been to have applied to be put upon the poor's roll. That she had not done so raised a suspicion that she know she could not shew a probabilis causa. And a pursuer who was a pauper, and suing under suspicious circumstances, was bound to find caution.
The pursuer argued that there was nothing suspicious in the pursuer not having tried to get upon the poor's roll, but the contrary, as the reason why she did not make the attempt was that counsel and agent were willing to take up her case.
Authorities— M'Donald v. Duchess of Leeds, May 16, 1860, 22 D. 1075; Henderson v. Rollo and Mitchell, Nov. 18, 1871, 10 Macph. 104; Maxwell v. Maxwell, March 3, 1847, 9 D. 797.
At advising—
Lord President—The question here is one of some importance. This pursuer is in receipt of parochial relief of 7s. a-week, and although that is not sufficient for the maintenance of herself and her children, still the allowance is considerable, and the position of this woman may be expressed by the one word “pauper.” Now it would be a strong thing to say, as a general rule, that a pauper can sue without finding caution for expenses. The pursuer has a title to be placed on the poor roll, and so as to sue advantageously; but to do that she must satisfy the reporters in probabilis causa that she has a probabilis causa. She has made no attempt, however, to do so, and one cannot help suspecting that she fears that she may not be able to satisfy the reporter. I think that at present we should proceed no further with the case, but sist proceedings in order to give the pursuer an opportunity of being put upon the poor's roll. If, however, she does not succeed in that, the probability is that she will have to find caution.
The other Judges concurred.
Counsel for Pursuer—Solicitor-General ( Millar), and Grant. Agent— James Barton, S.S.C.
Counsel for Defender— C. Smith. Agents— Keegan & Welsh, S.S.C.