Scottish Court of Session Decisions

Lord Justice-Clerk—I think that the case of Macdonald, which seems to be the last decided case upon this question, is an authority for this proposition—that it does not follow as a matter of course from a pursuer being in receipt of parochial relief that he is not entitled to sue an action except upon condition of either establishing a probabilis causa and then suing in forma pauperis or finding caution for expenses. The case of Hunter v. Clark does indeed appear to be an authority to the effect that such a pursuer, if he cannot establish a probabilis causa, and so get the benefit of the poor's roll, must find caution for expenses, but I see that the Judges who decided Macdonald v. Simpson considered that there must have been special circumstances in the case of Hunter which led to the Court exercising their discretion in the way they did. There are certain peculiar circumstances in the present case which are not favourable to a judgment ordaining the pursuer to find caution. To begin with, the defender does not choose to appear to defend the judgment she obtained, and to state to us any circumstances justifying it. In these circumstances I think we are entitled to regard the statements of the pursuer as a substantially accurate account of the facts. Now, from these statements it seems that the pursuer had long enjoyed the right to certain heritable subjects. She let them, and she brought an action in the Small Debt Court for the rent. The answer made to her was that she had no title; that someone else had a title. So far, the case does not appear to be that of a woman who has absolutely no estate. The Sheriff sisted the small-debt action (I do not think discreetly) for the purpose of allowing the pursuer to raise an action of declarator of title, and the pursuer brought such an action in order to establish a title which had hitherto not been disputed. The defender maintained in that action that she must find caution because she had obtained parochial relief, and as she failed to do so, the Sheriff assoilzied the defender. I think that judgment was not justifiable in the circumstances. I think that we should follow the case of Macdonald v. Simpson, and decide that the pursuer need not find caution as a condition of insisting in the present action.

Lord Young—I agree. I think the case of Macdonald rules the present one. It is indistinguishable from it. I need not add more, as I should only repeat my judgment in that case.

Lord Rutherfurd Clark—I agree. I have some doubts whether I am correctly reported in the case of Macdonald v. Simpson, because I am made to say that I saw no difference between that case and the case of Hunter v. Clark. I think there must be an error in that. In the special circumstances here, however, I think we should not require the pursuer to find caution.

Lord Trayner—I agree in the result at which your Lordships have arrived, but upon the ground that there has been no appearance for the defender. I am not prepared to base my judgment upon the grounds upon which your Lordships are proceeding. I think as a general rule that a pauper who does not choose to apply for the benefit of the poor's roll, and to sue in forma pauperis, is not entitled to litigate without finding caution. Upon that question as a matter of principle I should addopt the opinion of the Lord President in the case of Hunter v. Clark.