Scottish Court of Session Decisions

Opinion indicated that in such an action final judgment would be res judicata as to the rest of the public.

Observations on the case of Jenkins,.

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A petition was presented in the Sheriff-court of Hamilton by John Potter and two others against Mr and Mrs Hamilton, Fairholm House, Lanarkshire, craving that the respondents should be ordained to remove certain gates near Orchard and Langholm Park, also craving interdict against the respondent obstructing the free passage along an alleged statute labour road and bridge. The petitioners were all working men, and the respondents maintained that they were not the real domini litis, and ought to be ordained to find caution for the expenses of process.

The Sheriff-Substitute ( Veitch) disposed of this plea by the following interlocutor:—The Sheriff-Substitute having heard parties' procurators on the preliminary pleas and made avizandum therewith: Finds it stated in support of the second of these pleas (which is, that the nominal pursuers not being the true domini hujus litis are not entitled to insist in the prayer of the petition, at least they are not entitled to do so without first finding caution for the expenses of process) that the pursuers are without means themselves, and are carrying on this action with the assistance of a number of other persons, inhabitants of Larkhall and neighbourhood and adjoining villages, who are the real domini litis; and that the pursuers have been put forward by these parties with a view to avoid costs in the event of the action being dismissed; before answer, and on the authority of the case Jenkins and Others v. Robertson and Others, March 20, 1869, Scottish Jurist, p. 386, Allows the defenders a proof of their averments in support of this plea, and to the pursuers a conjunct probation, and reserves the other preliminary pleas for disposal along with the second preliminary plea, after the proof which is allowed has been led: Grants diligence against witnesses and havers, and appoints the cause to be put to the roll on this interlocutor becoming final, in order that a diet of proof may be final.

Note.—The pursuers procurator maintained that the case founded on had reference only to proceedings before the Court of Session, where the expenses were so great; but the Lord President at the end of his opinion says—I do not think it necessary to say more upon the principle or rule upon which this decision depends, but I think it runs through the whole of the practice of our law, and that there must reside in every Court of Justice a discretionary power of making such an order as this, because the absence of such a power would lead to most unjust and improper results.

“After the proof has been led, it remains to be seen whether the facts of this case warrant such a judgment as was pronounced in the decision referred to, but it is quite clear that if the pursuers themselves have no means to pay expenses in the event of decree of absolvitor being pronounced, the defenders can have no recourse against the public of Larkhall or the other parties referred to by the pursuer.”

Both parties appealed to the Sheriff ( Bell) who pronounced the following interlocutor:—“Having heard parties procurators on their respective appeals and reviewed the process; Finds that this is an actio popularis of a character very similar to the recent case of Jenkins and Others, March 20, 1869, in which it was held that where pursuers were not seeking to vindicate any private or patrimonial claim, but were asserting an alleged public right, and were put forward by a number of persons who were interested to at least an equal extent in the result, but who kept in the back ground so as to avoid liability for costs, it was reasonable that such pursuers, being themselves in indigent circumstances, should be required to find caution for the defenders expenses as a condition of the litigation being allowed to proceed; finds that in the very first article of the pursuers' condescendence in the present action they state broadly that as inhabitants respectively of the three villages there mentioned, they ‘ were, at a public meeting of the inhabitants of said villages and surrounding districts held in August 1869, instructed, requested, authorised and nominated to take proceedings to vindicate rights as after craved, not only as for themselves individually, but also as representing and for behoof of the inhabitants of foresaid villages and surrounding districts, and the public generally;’ finds that it is therefore unnecessary to allow the defenders any proof of their facts, and the only averment which it is necessary the defenders should prove to bring the case in as far as this point is concerned into precise conformity with that of Jenkins is, that the pursuers are not in circumstances to pay the defenders' costs if found liable therein: Therefore so far alters the interlocutor appealed against, and restricts the proof allowed to the last mentioned averment, but quoad ultra adheres to said interlocutor, and dismisses both appeals.”

After a proof had been led, the Sheriff-Substitute found that the only remaining pursuers of the action, John Potter and William Potter, had sworn that their wages average were 4s. 2d. and 4s. 6d. per day, and that they had no other means of any kind, and found, therefore, that the defenders had established their averment admitted to probation, viz., that the pursuers were not in circumstances to pay the defenders' costs if found liable therein, and therefore ordered the pursuers to find caution for expenses within ten days. The Sheriff allowed another pursuer to be sisted, and, on the import of the proof, pronounced this interlocutor:— “Having heard parties' procurators on the pursuers' appeal, and reviewed the process, in respect it is instructed by the extract decree dative produced with the minute No. 17, that John Prentice therein designed has been decerned executor-dative of the deceased pursuer James Prentice, sists said John Prentice as a pursuer in room of the said James Prentice; but adheres to the Sheriff-Substitute's interlocutor of 25th January last, refusing to allow a new party to be sisted as a pursuer as proposed in the minute No. 16: Finds, as regards the oilier two interlocutors appealed against, that the proof establishes that the pursuers are miners or colliers, with wives and families, and it is admitted that the pursuer John Prentice is in much the same circumstances as the deceased James Prentice; that the wages of each pursuer average about 4s. 3d. per day of working days, and they have no other means whatever; that, besides maintaining themselves, their wives and families, they have house rent to pay; that the funds for carrying on the action are being raised by subscription, towards which one of the pursuers has contributed a shilling, and the other two nothing: Finds that the above facts instruct that the pursuers here are very nearly in the same position, patrimonially and otherways, as the pursuers were in the case of Jenkins, formerly referred to, the pursuers in which were earning about 15s. a-week, and in which the Court unanimously found that the action could

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not be allowed to proceed, except on condition of said pursuers finding caution for expenses, in the event of the defenders obtaining judgment of absolvitor; therefore, and in respect no different rule can be adopted in this case, adheres to the Sheriff-Substitute's interlocutor of 28th January last, and finds that his interlocutor of the 4th instant, which necessarily followed on the failure to find caution, can be recalled only if caution be yet found between this date and 6th April next, being the day of the first district Appeal Court after the recess, and continues the cause in the Sheriff's Appeal Roll till the said date, with certification.”

The pursuers reclaimed.

Scott for them.

Shand in answer.