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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edgar v. Johnston [1904] ScotLR 41_622 (17 June 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/41SLR0622.html
Cite as: [1904] ScotLR 41_622, [1904] SLR 41_622

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SCOTTISH_SLR_Court_of_Session

Page: 622↓

Court of Session Inner House Second Division.

[Sheriff Court at Dumfries.

Friday, June 17. 1904.

41 SLR 622

Edgar

v.

Johnston.

Subject_1Poor's Roll
Subject_2Reporters Equally Divided in Opinion as to Admission of Applicant to Poor's Roll.

Facts:

Where the appellant in a Sheriff Court appeal applies for the benefit of the poor's roll and the reporters are equally divided in opinion, held ( diss. Lord Young) that the rule is settled that the Court will not admit the applicant.

Ormond v. Henderson & Sons, January 23, 1897, 24 R. 399, 34 S.L.R. 323, followed.

Headnote:

An action was raised in the Sheriff Court of Dumfries and Galloway at Dumfries by poor Margaret Little Simpson Edgar, domestic servant, 3 Old Well Road, Moffat, against RobertJohnston, shoemaker, Gowan Cottages, Buccleuch Street, Moffat.

After a proof the Sheriff-Substitute ( Campion) on 15th March 1904 granted decree against the defender.

The defender appealed to the Court of Session, and made application for admission to the poor's roll.

The defender's application was remitted in ordinary form to the reporters on probabilis causa litigandi, and they reported that they were equally divided in opinion as to whether the applicant had or had not probabilis causa litigandi.

The defender presented a note to the Lord Justice-Clerk praying his Lordship to move the Court to find him entitled to the benefit of the poor's roll and to remit the case to a counsel and agent to conduct.

At calling of the note in Single Bills, counsel for the pursuer moved the Court to refuse the application, relying on the case of Ormond v. Henderson, January 23, 1897, 24 R. 399, 34 S.L.R. 323.

Argued for the applicant—When the reporters were equally divided in opinion, the admission or non-admission of the applicant was a question for the Court, and the applicant was entitled to the benefit of any doubt— Marshall v. North British Railway Company, July 13, 1881, 8 R. 939, 18 S.L.R. 675.

At advising—

 Judgment:

Lord Justice-Clerk—The question in this case is whether an applicant for the benefit of the poor's roll can be successful where the reporters on probabilis causa are equally divided. The question has in my opinion been already settled by decision, and the unanimous judgment in the case of Ormond, 24 R, definitely disposed of the question. My opinion therefore is that the note presented for admission must be refused.

Lord Young—I am unable to regard the decision to which your Lordship has referred upon such a question as this as

Page: 623↓

equivalent to a statute or Act of Sederunt. I think it always in the discretion of the Court to deal with these matters. My opinion is that where the reporters on probabilis causa litigandi are equally divided, the Court may, and if they think fit ought to, admit the applicant to the poor's roll.

Lord Trayner—I agree with your Lordship. I think the question was settled, and not for the first time, in the case of Ormond. A rule being once fixed should not be gone back upon, and there is no reason in the present instance why it should.

Lord Moncreiff was absent.

The Court refused the prayer of the note.

 Counsel:

Counsel for the Pursuer and Respondent— C. J. L. Boyd. Agent— A. Bowie, S.S.C.

Counsel for the Defender and Appellant— A. Duncan Smith. Agent— P. F. Dawson, W.S.

 1904

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URL: http://www.bailii.org/scot/cases/ScotCS/1904/41SLR0622.html