Scottish Court of Session Decisions

William Ayson Drummond, 166 Perth Road, Dundee, applied for the benefit of the poor's roll to enable him to carry on an action for damages for infringement of patent and for interdict depending in the Outer House before Lord Wellwood against Thomas Fletcher, gas engineer, and Thomas Fletcher & Company, gas engineers, both of Thynne Street, Warrington, in Lancaster, against whom jurisdiction had been founded by arrestment.

The Court remitted to the reporters on the probabilis causa, who reported that they were equally divided in opinion, one of the counsel and one of the agents being of opinion that the applicant had, and the other counsel and the other agent that he had not, a probabilis causa litigandi.

The applicant moved the Court to admit, and argued that the case was ruled by that of Marshall v. The North British Railvay Company, July 13, 1881, 8 R. 939. The more recent cases of Carr and Watson, in which the Court had refused to admit where the reporters were equally divided, were appeals from the Sheriff Court where both Sheriffs had decided against the applicant. The case of Shanks was very peculiar. Here the action could only be brought in the Court of Session, consequently he was in a more favourable position than the applicant in Marshall's case. This distinction had been pointed out by Lord Rutherfurd Clark in the cases of Stevens v. Stevens, January 23, 1885, 12 R. 548 and Wright v. Brown's Trustees, May 21, 1885, 12 R. 959.

The defenders objected to the admission of the pursuer, relying upon Lord Shand's opinion in Marshall's case, and upon the more recent cases of Carr, &c. v. The North British Railway Company, November 1, 1885, 13 R. 113; Shanks v. The Moderator, &c., of Reformed Presbyterian Church, March 11, 1886, 13 R. 749; and Watson v. The Callander Coal Company, November 17, 1888, 16 R. 111.

At advising—