Scottish Court of Session Decisions

R. G. Penn, bricklayer, Larbert, applied for admission to the poor's roll in order to defend an action of divorce on the ground of desertion which had been brought against him by his wife.

The application was remitted to the reporters on probabilis causa litigandi, who on 9th November 1911 reported that in their opinion the applicant had a probabilis causa litigandi, and that he was otherwise entitled to the benefits of the poor's roll. They appended to their report the following

Note.—“The applicant is the defender in an action of divorce on the ground of desertion, having appeared to defend at the diet of proof for the pursuer. He desires to lodge defences and to lead evidence in support thereof, and the action has been sisted to enable him to obtain the benefit of the poor's roll. There is one child of the marriage who resides with the pursuer.

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In his statement made before the minister and elders of the parish of Larbert the applicant stated that he is a ‘bricklayer to trade, in which his earnings amount to £1, 10s. per week when in employment.’ From a statement supplied by his employers, Messrs J. & X W. M'Lachlan, Larbert, we find that for the year from 29th October 1910 to 28th October 1911 his total wages were £70, 17s. 4d. This is an average of 27s. 3d. per week. During this year he was without work for three weeks. His average earnings for the remaining 49 weeks were therefore 28s. 11 1 2d.

The question is whether the special circumstances of the case justify departure from the rule laid down by Lord President Inglis in Robertson, 1880, 7 R. 1092, that a man with 23s. a-week is not in ordinary circumstances entitled to the benefit of the poor's roll. An example of such a departure is the case of Paterson v. Linlithgow Police Commissioners, 1885, 15 R. 826, where a pursuer having a wage of 27s. was admitted to the poor's roll. For other examples of circumstances justifying departure from the general rule reference is made to Brown v. Brown, 1906, 8 F. 687.

In view of these precedents, and of the special circumstances of this case, we are humbly of opinion that it belongs to that class of cases in which an exception may be made to the general rule.”

On 14th November 1911 counsel for the applicant moved for admission.

Counsel for the applicant's wife objected, and argued—The applicant's circumstances did not justify his admission. The general rule was that a man earning 23s. a-week was not in ordinary circumstances entitled to be admitted— Robertson, July 8, 1880, 7 R. 1092. There were no special circumstances in the present case. The reporters should not have taken into consideration the fact that the applicant was occasionally out of employment—Lord President Inglis in Robertson ( cit. sup.). The applicant was earning 30s. a-week, and was therefore not entitled to admission— Macaskill v. M'Leod, June 30, 1897, 24 R. 999, 34 S.L.R. 752.

Argued for the applicant—In doubtful cases the Court was bound to consider any special circumstances that existed— Brown v. Brown, March 15, 1906, 8 F. 687, 43 S. L. R. 503. The applicant here had been brought into Court as defender by his wife, and, moreover, the action was one of divorce. Reasons of public policy made it desirable that consistorial causes should, if possible, be properly defended. Miller v. Gordon, March 8, 1838, 16 S. 812, and Paterson v. Linlithgow Police Commissioners, July 4, 1888, 15 R. 826, 25 S.L.R. 601, were also referred to.