Scottish Court of Session Decisions

The respondent had in March 1869 raised a summons of removing in the Sheriff-court of Stirlingshire against the complainer, concluding for his removal at the term of Whitsunday 1869 as a yearly tenant from a cottage, with a byre, stable, and yard and an acre and half of ground for a cow's grass, held by him of the respondent. Notwithstanding the provision contained in the A. S. of 10th July 1839, § 34, the complainer was not ordained to find caution for violent profits. Eleven months after the raising of the summons the Sheriff-Substitute decerned in the removing, and thereafter the Sheriff adhered to the judgment of his Substitute. The present note of suspension and interdict prayed for suspension of a threatened charge on the said decree without caution or consignation.

It is provided by the A. S. of 14th December 1756, § 6, that in the suspension of a decreet or process of removing “the complainer shall be obliged to find sufficient caution, not only for implement of what shall be decerned on the advocation or suspension upon discussing thereof, but also for damage and expense in case the same shall be found due.” The complainer declined to amend his note to the effect of offering caution, but stated his readiness to find juratory caution, and he lodged an inventory of his effects, the alleged value of which as appeared there from was £70, 5s. 6d. sterling.

The Lord Ordinary ( Mackenzie) held, that as there was no specialty to take the case out of the ordinary rule, the juratory caution offered was not “sufficient,” and that therefore the note must be refused.

The complainer reclaimed.

Millar, Q.C., and Mair, for the reclaimer, maintained that, there being a valid and duly stamped lease in his favour, and the case being exceptional and special, he was entitled to have the note passed on juratory caution. The lease was as follows, viz., “Mugdock, 9th August 1867. I, John Weir, do hereby to let James Logan a house and stables and byre garden, £9, 10s., for a lease of to the end of my lease, I, John Weir.” There was thus a specification of the subjects, a rent, and a definite ish. And certain repairs had been executed on the premises on the faith of the lease. The specialty of the case consisted in this, that both in the suspension and in the pleadings in the Inferior Court the respondent stated that it the signature to the document was not his signature; while it was stated for the complainer in his condescendence in the Inferior Court that it had been reported that the respondent went about saying lie was drunk when he signed the lease, and to meet this alleged statement of the respondent the complainer averred minutely the circumstances in which the lease was signed and the parties present at the time. In answer to this the respondent had replied “irrelevant and denied,” but without adding any counter statement. All this, the complainer urged, made the case a peculiar one, and entitled him to the benefit of juratory caution.

Shand and Brand, for the respondent, replied that the lease was quite insufficient, in respect (1) it contained no specification of rent, the figures £9, 10s. being interlined, and, as they stood, unintelligible; (2) the lease contained no mention of the acre and half of ground occupied by the complainer, and that acre was distinct from the “garden” mentioned; therefore, the subjects occupied being different from the subjects described, these were not identified in the missive, and consequently that document was bad in law. With regard to the alleged specialty, it had no existence. The signature being denied, the respondent could not say in what circumstances, or when, or by whom, it was signed, and could not meet the detailed averment of the circumstances attending the signature in any other way than by a denial. The case of Marshall v. Gartshore, 28th May 1850, 12 D. 946 afforded a good illustration of a special case, but the present was not attended with any of the like peculiarities, and therefore the complainer must be ordained to find ordinary caution.

At advising—