Scottish Court of Session Decisions

This was an appeal against an interlocutor of the Sheriff-Substitute of Caithness in an action at the instance of Mrs Alexa Mill or Manson against John Dundas. The summons in said action ran as follows:—“George Dingwall Fordyce, Esq., advocate, Sheriff of the counties of Sutherland and Caithness, to officers of Court jointly and severally.—Whereas it is shown to me by Mrs Alexa Mill or Manson, late tenant at Brims, in the parish of Thurso, now or lately residing at Reay, in the parish of Reay, and county of Caithness, pursuer; against John Dundas, farmer at Brims aforesaid, defender; in terms of the conclusions underwritten: Therefore the defender ought to be decerned to pay to the pursuer the sum of £29, 11s. 6d. sterling, being the amount to which she was and is entitled, of corn valuation of 4 acres of second year's grass on said farm at Brims, from which the pursuer was the outgoing tenant at Whitsunday 1868, and the defender was then the incoming tenant, and as such liable in said amount of £29, 11s. 6d. sterling, but under deduction always of the sums of (1) £1, 8s. sterling, for the expense of ploughing; and (2) £3, 5s. sterling, the cost of two quarters and one half-quarter seed, at £1, 6s. sterling per quarter, amounting said deductions to the sum of £4, 13s. sterling, and thus leaving a balance resting-owing to the pursuer of £24, 18s. 6d. sterling, with interest on said balance from the first day of June 1868 at the rate of £5 per centum per annum till payment, with expenses.”

The first plea in law for the defender was—“That the summons as laid is defective and inept, inasmuch as it does not relevantly set forth the nature, extent, and grounds of action as required by the Act of Sederunt of 10th July 1839. It is not set forth whether the sum claimed for be due under contract by the practice of the country or otherwise.”

The Sheriff-Substitute ( Hamilton Russel) pronounced the following interlocutor:—

“ Wick, 15 th July 1870.—The Sheriff-Substitute having heard parties' procurators on the preliminary defence, sustains the same: Dismisses the action as laid, and assoilzies the defender: Finds the defender entitled to expenses, and remits the account thereof when lodged to the auditor of Court to tax and report, and decerns.”

The pursuer appealed to the First Division of the Court of Session.

Harper, for her, maintained that the interlocutor complained of should be recalled, because the action had been dismissed in consequence of a plea founded on an Act of Sederunt which had been repealed by the Sheriff-court Act of 1853; and also that the summons was in conformity with the requirements of the Act of 1853.

Black, for the defender and respondent, contended that the appeal should be dismissed, the summons not being a good one under the Act, the grounds of action not being stated.

At advising—