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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marshall v. North British Railway Co. [1881] ScotLR 18_675 (13 July 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0675.html
Cite as: [1881] ScotLR 18_675, [1881] SLR 18_675

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SCOTTISH_SLR_Court_of_Session

Page: 675

Court of Session Inner House First Division.

Wednesday, July 13. 1881.

18 SLR 675

Marshall

v.

North British Railway Company.

Subject_1Poor Roll
Subject_2Where Reporters equally Divided in Opinion
Subject_3Competency of Remit to other Reporters
Subject_4Act of Sederunt 21st November 1842, sec. 1.
Facts:

Where the reporters on the probabilis causa litigandi are equally divided in opinion as to the propriety of admitting an applicant to the benefit of the poor roll—held (diss. Lord Shand) (1) that it is incompetent to remit to any other reporters than those chosen in terms of the Act of Sederunt 21st November 1842; and (2) that the effect of an equal division of opinion among the reporters is to admit the applicant.

Headnote:

Margaret Ferguson or Marshall applied for the benefit of the poor roll, to enable her to carry on an action of damages against the North British Railway Company. The application was on 14th May 1881 remitted to the reporters on the probabilis causa litigandi. The reporters, after hearing parties, reported to the Court that they were equally divided in opinion as to the probabilis causa litigandi, one counsel and one agent being of opinion that the applicant had not, and one counsel and one agent being of opinion that she had, a probabilis cause. In these circumstances they craved the Court “to dispose of the remit,” and referred to an unreported case of A B, May 1866 (Mackay's Practice, i. 337), where the reporters were equally divided and the Court admitted the applicant. Mrs Marshall then enrolled the case to have the remit disposed of.

The North British Railway Company objected to the applicant being admitted to the roll, on the ground that she had not produced a favourable report from the reporters on probabilis causa litigandi, and suggested that the case should be remitted of new to other reporters.

Authorities— Clark v. Campbell, July 6, 1833, 11 S. 908; M'Callum, June 26, 1841, 3 D. 1102; Rutherford, July 20, 1855, 17 D. 1140.

Judgment:

At advising—

Lord President—The Act of Sederunt of 21st November 1842 in its 1st section provides—“That the Faculty of Advocates, the Writers to the Signet, and Solicitors before the Supreme Courts, besides electing counsel and agents for conducting the causes of the poor as at present, shall also respectively name two advocates, one Writer to the Signet, and one solicitor each year, to act exclusively as reporters on the probabilis cause of the pauper applicants for the benefit of the poor roll; the lists to be furnished to the senior principal Clerk of Session of each Division of the Court, and also to the Keeper of the Minute-book, in order to be printed and published on the meeting of the Court in January yearly, and headed List of Lawyers and Agents for the poor, 1843,’ and so on yearly.” Now, that arrangement was made with these bodies of practitioners after a careful consideration of the subject, in order to remedy an existing evil arising from the great laxity in the mode of admission to the poor roll. I had a good deal to do personally with the framing of that Act of Sederunt, and I know that it was the intention of the Court that nobody should be allowed to act as a reporter on the probabilis causa except the persons named by the Faculty of Advocates, the Writers to the Signet, and the Society of Solicitors. I should consequently be very slow indeed to resort to the remedy of remitting to persons not named by these bodies. The question therefore is, whether where there is an equal division of opinion among the gentlemen to whom alone this business is entrusted, the result ought to be to exclude or to admit the applicant to the benefit of the roll? On this point I have not much difficulty. If there is so much doubt in the particular case as to lead to two of the reporters to be in favour of admitting the applicant, I have little hesitation in following the case mentioned in Mr Mackay's book. I am for granting the application.

Lord Deas and Lord Mure concurred.

Lord Shand—I cannot agree with your Lordships that this Court has not power to remit to other persons than those appointed under the Act of Sederunt of 1842. It is true that the Act of Sederunt says that these gentlemen are “to act exclusively as reporters on the probabilis causa,” but I cannot doubt notwithstanding this provision that the Court has the power to remit to any other person whenever it seems necessary to do so. I think therefore that we should have acceded to the motion of the respondents to remit to an independent third party.

As to whether a probabilis causa has in the present case been made out, if it is a decided point that an equality of division among the reporters is sufficient evidence of a probabilis causa, there is an end of the matter; but if the point is still an open one, then I must say that I differ from your Lordships. The onus upon the applicant is to show that he has probable cause of success, and I do not think that he has done so when the reporters are equally divided. It is not enough to show that he has a fair chance of success; I think he must have a preponderating chance. I therefore must be against admitting the applicant.

The Court admitted the applicant.

Counsel:

Counsel for Applicant— Sym. Agent— D. Cuthbert, S.S.C.

Counsel for Objectors— Dickson. Agent— Adam Johnstone, Solicitor.

1881


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