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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gore v. Westfield Autocar Co., Ltd [1922] ScotLR 85 (14 November 1922) URL: http://www.bailii.org/scot/cases/ScotCS/1922/60SLR0085.html Cite as: [1922] SLR 85, [1922] ScotLR 85 |
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Page: 85↓
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(Reported ante 58 S. L.R. 488.)
Expenses — Caution for Expenses — Poor's Roll — Reclaiming Note Presented against Advice of Senior and Junior Counsel and after Unfavourable Report by Reporters on Probabilis Causa Luigandi.
A litigant in forma pauperis presented a reclaiming note contrary to the advice of his counsel, who had refused to sign it, and also against the advice of senior counsel appointed by the Dean of Faculty to consider whether a reclaiming note should be presented. The Court having as a special indulgence allowed the note to be received, thereafter, on the application of the defenders, remitted the case of new to the reporters on probabilis causa litigandi. The reporters having stated that in their opinion the case presented no probability of success whatever, the defenders presented a note craving the Court to remove the pursuer from the poor's roll. The Court ordered his removal from the roll.
Circumstances in which the Court, whilst removing a litigant, pursuer in an action of damages, from the poor's roll, refused to ordain him to find caution for expenses as a condition-precedent to proceeding with the reclaiming note.
Alexander Gore, 23 Albion Road, Edinburgh, pursuer, raised an action for breach of contract against the Westfield Autocar Company, Limited, Edinburgh, defenders.
The pursuer having been admitted to the poor's roll, proof was led, and on 24th May 1921 the Lord Ordinary ( Anderson) assoilzied the defenders.
Contrary to the advice of his senior and junior counsel and agents, the pursuer presented a reclaiming note, signed by himself and not by counsel, which on 15th June 1921 the Court allowed to be received as a special indulgence in the particular circumstances.
On 12th January 1922 the Court, on the defenders' motion, remitted the case to the reporters probabilis causa, who on 2nd November 1922 reported that in their opinion the pursuer did not any longer have a probabilis causa litigandi, and that he accordingly should not continue to have the benefit of the poor's roll.
On 14th November 1922 the defenders presented a note, in which they craved the Court to order the pursuer's removal from the poor's roll and to ordain him to find caution for the expenses of the cause as a condition of proceeding with the reclaiming note, and parties were heard in Single Bills of that date.
Counsel for the defenders cited the following cases:— M'Intosh v. M'Indoe, (1821) 1 S. 218; A B v. Fraser, (1836) 14 S. 1114; Robertson v. Meikle, (1890) 28 S.L.R. 18; Buchanan v. Ballantine, 1911 S.C. 1368, 48 S.L.R. 111.
Page: 86↓
I am clear that in the particular circumstances of this case it would be wrong to allow the pursuer to remain on the poor's roll. On the other hand, I do not think that the circumstances would justify us in disabling him, if he chooses, from going on with his litigation by imposing a condition that he should find caution. I think therefore that he should be removed from the poor's roll, but that no order for caution should be made.
The Court found and declared that the pursuer had forfeited the benefits of the poor's roll, and ordered him to be removed from the poor's roll, and quoad ultra refused the prayer of the note.
Counsel for Pursuer and Reclaimer—Party. Agent—Party.
Counsel for Defenders and Respondents— Garrett. Agents— T. & W. Liddle, Maclagan, & Cameron, W.S.