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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ormond v. Alexander Henderson & Sons [1897] ScotLR 34_323 (23 January 1897) URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0323.html Cite as: [1897] ScotLR 34_323, [1897] SLR 34_323 |
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Page: 323↓
[Sheriff-Substitute of Forfarshire.
A pursuer in a Sheriff Court action for damages for personal injury appealed direct to the Court of Session against a judgment of the Sheriff-Substitute dismissing the action as irrelevant. The pursuer applied for the benefit of the poor's roll, and the reporters on probabilis causa were equally divided in opinion as to the relevancy of the pursuer's averments. The Court refused the application.
This was an action brought in the Sheriff Court at Dundee by Samuel Ormond, jute worker, against Alexander Henderson & Sons, spinners in Dundee. The pursuer craved decree for £100 as damages for personal injuries sustained by him.
The Sheriff Substitute ( Campbell Smith), by interlocutor dated 29th July 1896, dismissed the action as irrelevant.
The pursuer appealed to the Court of Session, and applied for admission to the poor's roll. The case was remitted to the reporters on the probabilis causa litigandi of applicants for the benefit of the poor's roll, who on 18th December reported that they were equally divided in opinion on the question whether the pursuer's averments disclosed a relevant ground of action. The pursuer moved the Court to admit. The defenders opposed the motion on the ground that when the applicant had appealed direct to the Court of Session from the judgment of the Sheriff—Substitute without taking the judgment of the Sheriff, the case must be taken to be practically in the same position as if both Sheriffs had decided against the applicant, and therefore to be governed by the rule laid down in the case of Carr v. North British Railway Company, November 1, 1885, 13 R. 113; and Watson v. Callander Coal Company, November 17, 1888, 16 R. 111, which was to the effect that when both Sheriffs were against the applicant and the reporters were equally divided, the application ought to be refused.
At advising—
The opinion of the Court was delivered by
On the authorities cited to us at the discussion, it appears that the Court has laid down what I think I may venture to call a rule, that where the judgments of the Sheriff and the Sheriff—Substitute are against the applicant, and the reporters are divided in opinion, the application for admission to the benefits of the poor's roll is refused.
That rule appears to me to be a sound rule, with which I would not interfere. This case, however, is not exactly in the position of the cases to which the rule has hitherto been applied, because the applicant has appealed directly from the Sheriff-Substitute, who has found his case to be irrelevant, and has not taken advantage of the appeal to the Sheriff, which was open to him. I think that an applicant who does not avail himself of the right to appeal to the Sheriff must be held to occupy the same position as if he had exhausted the resources of the Inferior Courts—as if he had appealed to the Sheriff, who had affirmed the judgment of his Substitute. If the Sheriff on appeal had differed from the Sheriff-Substitute, there would have been no need of further appeal. The pursuer would then have had a judgment to the effect that his case was relevant. If the Sheriff had agreed with the Sheriff-Substitute and held the action irrelevant, then the pursuer would have been within the rule which I have mentioned. But as the applicant has not taken advantage of the appeal afforded by the Sheriff Court procedure, I think he must be taken as if he acknowledged that the Sheriff would on appeal have been of the same opinion as his Substitute. I am accordingly of opinion that the application should be refused.
The Court refused the application.
Counsel for the Applicant (Pursuer)— Blair. Agent— R. Macdougald, S.S.C.
Counsel for the Defenders— E. F. Macpherson. Agent— Charles T. Cox, W.S.
