Scottish Court of Session Decisions

The complainer was tenant of the farm of Bogan-green and Muirside in Berwickshire under a nineteen years' lease from the deceased Thomas Weir, dated 3d December 1863 and 14th April 1864. The complainer's estates were sequestrated under tho Bankrupt Acts on 14th April 1869, but he was thereafter discharged under the sequestration and reinvested in his estates on 3d December of the same year. On 12th January 1870 the complainer was served with a summons raised before the Sheriff of Haddington and Berwick, at the instance of the respondents, founding on the 5th section of the A.S. of 14th December 1756, and setting forth that the complainer had deserted his possession of the farm leased to him, and had left it unlaboured at the usual time of labouring. It then concluded that the complainer be ordained to find caution for the yearly rent of the said farm for the five crops from Whitsunday 1869 to Whitsunday 1874 inclusive; and, failing his finding caution, that he be decerned and ordained to flit and remove, &c. The complainer entered appearance to defend the action, and at the calling of the summons his procurator stated certain defences which he proposed to minute, and in particular he denied that the complainer had deserted his possession of the farm and left it unlaboured at the usual time of labouring. He stated further that the complainer resided on the farm as he had always done since his entry thereto, that he had already ploughed part of the lands, and was in the course of having the farm properly laboured for the crop of the current year. For the respondents it was objected to the said defence being minuted till the complainer had found caution for violent profits in terms of the A. S. of 10th July 1839, § 34. This objection the Sheriff-Substitute sustained, whereupon the complainer offered to verify forthwith his defence, and in particular to prove that he had not deserted and left the land unlaboured. This offer was refused, and an interlocutor pronounced by the Sheriff-Substitute ( Dickson) ordaining the complainer,—in respect he had not found caution for violent profits, and had not instantly verified a defence excluding the action,—to find caution for the rents for the five following crops. To this interlocutor the Sheriff ( Shand), on appeal, adhered. The complainer having failed to find caution for violent profits, was decerned against in the removing in terms of the conclusions of the summons. On this decree a charge was threatened, and the complainer accordingly brought the present note of suspension. The Lord Ordinary on the Bills ( Lord Mure) refused the note. Against this judgment the complainer reclaimed.

Scott and Brand, for the complainer, pleaded that the Judges in the inferior court had totally misconstrued the nature of the case: that the process raised was not in its inception au action of removing at all, but an action for caution, and that it was only on the failure to find caution that an interlocutor of removing could be pronounced. This was the course followed in the analogous case of Cossar v. Home, Feb. 8, 1847, 9 D. 617. Further, that the complainer could not competently be asked to find caution till the respondents had proved their averments and the complainer allowed an opportunity of verifying his defence. There had been error in treating this case as if the lease had expired or was about to expire, for then, and then only, did the 34th section of the A.S. 1839 apply; Mackenzie v. Mackenzie May 23, 1848, 10 D. 1009, was an authority in point as to this.

A. Moncrieff and Kinnear, for the respondents, maintained that Cossar was a direct authority for them, for the report of the case is not intelligible unless on the supposition that the respondent there had been ordained to find caution for violent profits before the interlocutor ordaining caution for the five following crops was pronounced; that the case of Mackenzie was so peculiar in its circumstances—from an action having first been raised by the tenant to compel the landlord to implement the terms of his lease,—that it could not be used as an authority against them, and that the present action was in all respects an action of removing to which the A. S. of 1839 directly applied. That therefore the interlocutors of the inferior court were well founded, and that the letters ought to be found orderly proceeded.

The Court unanimously held that the action was not, properly speaking, one of removing, but an action for caution, and could only become one of removing in the event of the complainer failing to find caution, but that he could not competently be ordained to find caution till the respondents had proved their averments of desertion and failure to labour at the usual time of labouring, and the complainer been allowed an opportunity of meeting that proof. They also held that the cases of Cossar and Mackenzie were both authorities for this view, and that the A. S. of 10th July 1829 had no application, in respect the lease had not expired nor was about to expire. The note was sought to be passed on juratory caution, but Lord Cowan was disposed to pass it without caution. The interlocutor pronounced did not however pass tire note, but altered the interlocutor of the Lord Ordinary, and remitted to the Lord Ordinary to remit to the Sheriff to allow the defences tendered for the complainer to be received, and thereafter to take proof and proceed in the cause as might be just; and found the complainer entitled to tire expenses incurred in the Bill Chamber.