Scottish Court of Session Decisions

At advising—

Lord President—The Act of Sederunt of 21st November 1842 in its 1st section provides—“That the Faculty of Advocates, the Writers to the Signet, and Solicitors before the Supreme Courts, besides electing counsel and agents for conducting the causes of the poor as at present, shall also respectively name two advocates, one Writer to the Signet, and one solicitor each year, to act exclusively as reporters on the probabilis cause of the pauper applicants for the benefit of the poor roll; the lists to be furnished to the senior principal Clerk of Session of each Division of the Court, and also to the Keeper of the Minute-book, in order to be printed and published on the meeting of the Court in January yearly, and headed List of Lawyers and Agents for the poor, 1843,’ and so on yearly.” Now, that arrangement was made with these bodies of practitioners after a careful consideration of the subject, in order to remedy an existing evil arising from the great laxity in the mode of admission to the poor roll. I had a good deal to do personally with the framing of that Act of Sederunt, and I know that it was the intention of the Court that nobody should be allowed to act as a reporter on the probabilis causa except the persons named by the Faculty of Advocates, the Writers to the Signet, and the Society of Solicitors. I should consequently be very slow indeed to resort to the remedy of remitting to persons not named by these bodies. The question therefore is, whether where there is an equal division of opinion among the gentlemen to whom alone this business is entrusted, the result ought to be to exclude or to admit the applicant to the benefit of the roll? On this point I have not much difficulty. If there is so much doubt in the particular case as to lead to two of the reporters to be in favour of admitting the applicant, I have little hesitation in following the case mentioned in Mr Mackay's book. I am for granting the application.

Lord Deas and Lord Mure concurred.

Lord Shand—I cannot agree with your Lordships that this Court has not power to remit to other persons than those appointed under the Act of Sederunt of 1842. It is true that the Act of Sederunt says that these gentlemen are “to act exclusively as reporters on the probabilis causa,” but I cannot doubt notwithstanding this provision that the Court has the power to remit to any other person whenever it seems necessary to do so. I think therefore that we should have acceded to the motion of the respondents to remit to an independent third party.

As to whether a probabilis causa has in the present case been made out, if it is a decided point that an equality of division among the reporters is sufficient evidence of a probabilis causa, there is an end of the matter; but if the point is still an open one, then I must say that I differ from your Lordships. The onus upon the applicant is to show that he has probable cause of success, and I do not think that he has done so when the reporters are equally divided. It is not enough to show that he has a fair chance of success; I think he must have a preponderating chance. I therefore must be against admitting the applicant.