Scottish Court of Session Decisions

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Cite as: [1886] SLR 23_525, [1886] ScotLR 23_525

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SCOTTISH_SLR_Court_of_Session

Page: 525↓

Court of Session Inner House Second Division.

Thursday, March 11. 1886.

23 SLR 525

Shanks Applicant.

Subject_1Process
Subject_2Poor Roll
Subject_3Probabilis Causa
Subject_4Division of Opinion among Reporters — Act of Sederunt, 21st December 1842.
Facts:

A applied to be admitted to the benefits of the poor roll in order to bring an action of damages against the presbytery of the church of which he was a probationer. The reporters on the probabilis causa were equally divided in number as to whether he had a probabilis causa or not. The Court, having regard both to the division of opinion among the reporters and to the peculiar nature of the action proposed to be brought, refused the application.

Headnote:

In this case the Rev. W. M. Shanks, who was a probationer of the Reformed Presbyterian Church and resided in Lanark, lodged an application that he might be admitted to the benefit of the
Page: 526↓
poor roll under the Act of Sederunt of 21st December 1842 for the purpose of bringing an action against the Reformed Presbyterian Presbytery. The Second Division remitted the case to the reporters on the probabilis causa. The reporters stated that they were “equally divided in opinion upon the application, and we would therefore respectfully leave the same with the Court to be disposed of by them as they may think proper.”

The presbytery argued—Though the reporters were equally divided in number as to whether there was a probabilis causa or not, the fact was that the two counsel who acted as reporters were of opinion that he had not, while the two agents were of opinion that he had. That being so, it must be held that he had not a probabilis causa, and the application therefore ought to be refused— Clark v. Campbell, July 6, 1833, 11 S. 908; Carr v. North British Railway Company, Nov. 1, 1885, 13 R. 113. In the case of Marshall [ infra] a counsel and agent were on each side.

Argued for Mr Shanks—It was the practice when the reporters were divided in opinion as to whether there was a probabilis causa or not, to hold that the application ought to be granted— Marshall v. North British Railway, July 13, 1881, 8 R. 939; Mackay's Court of Session Practice, i. 337.

Judgment:

At advising—

Lord Justice-Clerk—I am inclined to refuse this application solely on the ground that the party has not produced any reason for showing that we should interfere. The reporters to whom the case was remitted have not found that he has a probabilis causa, and I see no reason why we should interfere.

Lord Young—I am for refusing the application, although I am not disposed to assent to any universal rule as to refusing such applications. The permission to be put upon the poor's roll is an indulgence granted to poor people so that they may conduct a litigation and to prevent hardship to them. The professional bodies appoint certain of their members who undertake the duty of seeing, if any person thinks he is aggrieved, he should have the means of bringing his case before the courts, even if he has not means to do this in an ordinary manner, and all our proceedings are taken for their protection, and against the lawyers for the poor being called upon to give their help to unworthy persons. As the Lord President points out in a case that was cited to us, all the precautions taken by the court are taken for the protection of the lawyers and agents appointed by professional bodies at the order of the Court. The remit used to be to the lawyers for the poor themselves, but it was thought better to remit the cases to uninterested parties to see whether there is a probabilis causa. I think that it is right that the Court should look at the kind of case that is submitted to the reporters, and I do not think that this is a kind of case on which we should look with great consideration. A clergyman wishing to have it ascertained in the Court of Session whether his views or those of certain other persons in his church are right seems to me not a case which we can view with much favour. I think this application ought to be refused.

Lord Craighill—I concur. In the ordinary cases the privilege of admission to the poor's roll will not be granted unless the reporters who are appointed for that purpose report that the applicant has a probabilis causa, and where the lawyers appointed for that purpose are divided in opinion there can be no such report presented; if there were, the Act of Sederunt would have no meaning. I do not, however, say that this must be a universal rule, but I do not think that there is anything in this case to make us deviate from the general rule.

Lord Rutherfurd Clark—I agree, and I base my opinion upon the special kind of case that the applicant here proposes to bring before the Court.

The Court refused the application.

Counsel:

Counsel for Applicant— Orr. Agent— Hugh Brown jun., W.S.

Counsel for Presbytery— M'Kechnie. Agent— D. Maclachlan, S.S.C.
1886