Scottish Court of Session Decisions

John Cunningham Brown, porter, 16 Archibald Place, Edinburgh, applied for admission to the poor's roll in order to defend an action of adherence and aliment brought against him by his wife, and to raise an action against her for divorce on the ground of adultery. She was on the poor's roll.

On 24th January 1906 the Court remitted the application to the reporterson probabilis causa litigandi to report whether the applicant had a probabilis causa litigandi, and also whether, in the circumstances of his application, he was otherwise entitled to the benefit of the poor's roll.

On 2nd March 1906 the reporters reported that the applicant had a probabilis causa litigandi, but that they did not think him entitled to admission to the roll.

The facts were as follows:—The applicant was a porter, thirty-seven years of age, married, without children, employed at the General Register House, Edinburgh, at a salary of sixty pounds a year or twenty-three shillings a-week. He had no means whatever beyond his salary.

Brown moved to be admitted. His wife opposed the motion on the ground that his circumstances did not warrant his admission.

Argued for the applicant—He was entitled to admission, the test being, could he, looking to the whole circumstances of the case, bear the ordinary costs of litigation. He could not— Miller v. Gordon, March 8, 1828, 16 S. 812; Robertson, July 8, 1880, 7 R. 1092; Stevens v. Stevens, January 23, 1885, 12 R. 548, 22 S.L.R. 356; Anderson v. Blackwood, July 11, 1885, 12 R. 1263, 22 S.L.R. 865; Paterson v. Linlithgoio Police Commissioners, July 4, 1888, 15 R. 826, 25 S.L.R. 601; Macaskill v.M'Leod, June 30, 1897, 24 R. 999, 34 S.L.R. 752. See especially Lord Young's opinion in the last four cases. The following special circumstances were strongly in his favour—his wife was already on the poor's roll, the proceedings were consistorial, he was a defender, being defender in the action of adherence and aliment, and pursuer in the action of divorce only because of it; if not admitted he would have to pay aliment, his own costs and his wife's costs—Act of Sederunt, 21st December 1842, section 16.

Argued for the objector—The question was whether the applicant was in necessitous circumstances. He was not, looking to the wages he earned, and the fact that he had no dependents— Robertson, cit. sup., governed the case, where Lord President lnglis laid it down that a man earning twenty-three shillings a-week was not except in exceptional circumstances entitled to get on the roll. See also Muir, February 1, 1850, 12 D. 632; Mackenzie v. Campbell, March 18, 1892, 29 S.L.R. 594. The Lord Ordinary had power to dispense with the payment of Court dues —The Clerks of Session ( Scotland) Regulation Act 1889, section 9.