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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Herbison v. M'Kean [1913] ScotLR 350 (24 January 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0350.html Cite as: [1913] SLR 350, [1913] ScotLR 350 |
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Page: 350↓
[Sheriff Court at Dumbarton.
The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51) enacts—“First Schedule, Rule 163.—The Sheriff shall remit the application [for the benefit of the poor's roll] to the procurators for the poor, who shall notify the parties, and after inquiry shall make a report to the Sheriff.”
It is incompetent in the Sheriff Court for a poor's agent to act as a reporter on the probabilis causa litigandi in an action where he is acting as poor's agent for one of the parties.
May M'Kean, Yoker ( respondent)presented a petition in the Sheriff Court at Dumbarton for the benefit of the poor's roll for the purpose of prosecuting an action against James Herbison, Dalmuir ( appellant). Mr Andrew Duncan, one of the agents for the poor, acted as agent for the petitioner, and as such signed the petition. On 17th December 1912 the Sheriff-Substitute ( M'Diarmid) remitted “to any two of the agents for the poor to inquire and report as craved,” and on 24th December 1912 Mr Duncan, along with Mr Kenneth S. Mackenzie, another of the agents for the poor, considered the application in the capacity of reporters on the probabilis causa litigandi, and reported as follows
“ Report.—At Dumbarton the 24th day of December 1912. Appeared the defender, with John Lawrie, writer, Clydebank, as agent for him, and in presence of the undersigned agents for the poor, who, after due inquiry into the pursuer's cause, report that the pursuer has a probable cause of action and is entitled to the benefit of the poor's roll.
And. Duncan, Agent for the Poor.
Kenneth S. Mackenzie.”
Thereupon the Honorary Sheriff-Substitute ( Henderson), by interlocutor dated 30th December 1912, appointed Mr Duncan, “one of the agents for the poor, to take charge of the pursuer's cause and conduct the same to its final issue.”
The defender appealed to the Second Division of the Court of Session, and on the case appearing in the Single Bills objected to the admission of the pursuer to the poor's roll on the ground that one of the two reporters on the probabilis causa litigandi who had considered the pursuer's application and reported in favour of her admission was the agent who was acting for her at the time.
The Court, which consisted of the Lord Justice-Clerk, Lords Dundas, Salvesen, and Guthrie, pronounced this interlocutor—
“Find that the proceedings before the agents for the poor on the remit to them by the Sheriff-Substitute were irregular and incompetent, in respect that the agent for the applicant was one of the two agents who reported in favour of the admission of the applicant: Hoc statu recal the interlocutor of 30th December 1912, and remit the petition to the Sheriff to remit of new to the agents for the poor to inquire and report and thereafter to proceed as accords.”
Counsel for the Appellant— Aitchison. Agents— Dove, Lockhart, & Smart, S.S.C.
Counsel for the Respondent— W. A. Fleming. Agents— Shield & Purvis, S.S.C.
