Scottish Court of Session Decisions

Lord Justice-Clerk—The difficulty in this case arises from the decision in Marshall v. North British Railway Company, 8 R. 939, where the Court admitted a person to the poor's roll although there was not a majority of the reporters in favour of her admission. But when the facts of that case are examined I think the difficulty disappears, for the report of the case shows that the applicant there was suing in the Supreme Court, and was not in the position of the applicant here of having two judgments standing against her by the Sheriff and his Substitute.

Now where, as here, the action is brought in the Sheriff Court, and both the Sheriff-Substitute and the Sheriff decide against the party applying for the benefit of the poor's roll, it is decided by Carr, 13 R. 113, and Watson, 16 R. 111, that the party is not entitled to be admitted to the roll. In the former case, which was exactly the same as the present, the Lord President observed—“I think there are very clear grounds for distinguishing between this case and the case of Marshall. The applicant there asked the Court for admission to the poor's roll for the purpose of carrying on an action in this Court. The reporters were equally divided in opinion, and in the circumstances we admitted the applicant;” and then his Lordship pointed out that in the case before the Court there were two judgments against the applicant, and concluded that the application should be refused. In Watson's case, again, the decision was the same, the Court holding itself bound by the decision in Carr. Since those cases there have been two other cases, both in this Division, namely, Ormond ( 24 R. 399), and Edgar ( 6 F. 825), in which the earlier decisions were held to settle the rule in this matter. Now here the applicant, as I have stated, has two judgments against him, and this being so, I can only say, in the words of Lord Rutherfurd Clark in Watson's case, that we are bound to follow the decisions unless we send the case to the Whole Court. I am not prepared to do so here, and therefore the only course open to us is to refuse the motion, and I so move your Lordships.

Lord Dundas—I agree. I think the rule, as your Lordship has put it, is sound and salutary; and if the current of previous decisions has not been absolutely uniform—and I am not satisfied that it has been so—the decision in the present case will go to strengthen and establish the rule.

Lord Salvesen—I am of the same opinion. There are four decisions—three in this Division and one in the First Division—to the effect that where there is an equal division of opinion among the reporters, the applicant is not to be admitted to the poor roll if there are adverse decisions by the Sheriff-Substitute and Sheriff. I do not think that there is any specialty in the fact that the two advocates among the reporters were in the applicant's favour, while the two who are against him are the members of the other branch of the profession. The special facts of this case we are not entitled to consider. They have already been considered by the reporters whose duty it was to do so. The decisions lay down the rule that when, under the circumstances that we have here, there is an equal division among the reporters, the onus placed on the applicant of showing a probabilis causa has not been satisfied.

Lord Guthrie was absent.