Scottish Court of Session Decisions

This case came up by reclaiming note against an interlocutor pronounced on the 16th June 1874, by the Lord Ordinary ( Gifford.)

The pursuer's great grandfather, James Murray, mason, in Catrine, leased certain subjects in the village of Catrine from the defenders, James Finlay & Co., merchants, Glasgow, for 999 years from and after Whitsunday 1825. On the 18th of February 1861 the defenders, James Finlay & Company, as heritable proprietors of the subjects thus leased, raised an action of removing in the Sheriff Court of Ayrshire against the pursuer, John Murray, as great-grandson and nearest and lawful heir in general of the deceased James Murray, and the tutors and curators of John Murray, for their interest as tenants in the said subjects, and also against Helen Murray, mill-worker, residing in Catrine, designed as the present possessor of said subjects. The summons concluded that the pursuer and the said Helen Murray ought, in terms of the Act 16 and 17 Victoria, chapter 80, section 32, to be decerned and ordained to remove from the subjects, on the ground that the tack rent and burdens for 22 years at and preceding the term of Martinmas 1860 were in arrear. The amount of the arrears was said to be £27, 14s. 7 1 2d. When this action was raised the pursuer was in a state of pupillarity, being only nine years of age, having been born in the year 1852. His father was dead, and he had no tutors or curators. The pursuer was therefore non valens agere, and not in a position to resist the conclusions of the action. On 9th July 1861 the Sheriff-Substitute held him as confessed, and decerned in removing, as libelled. No tutor ad litem to the pursuer was appointed. Immediately after the decree of removing was pronounced, James Finlay & Company entered into possession of the subjects, and have since continued to possess, and draw the rents thereof. The value of the subjects at the date of the decree of removing greatly exceeded the amount of arrears of tack rents alleged to be in arrear. The pursuer attained the age of 21 on 2d June 1873. The defenders in reply averred that since they entered on the possession of the subjects in 1861 they had expended £269, 8s. 1d. in erecting buildings thereon. They did not admit the age or identity of the pursuer, and they maintained that the decree in absence had the same effect, under 16 and 17 Vict., chap. 80 sec. 32, as a decree of irritancy ob non solutum

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canonem has in the case of a feu. Further, that the value of the subjects in 1861 was considerably less than the amount of arrears due, and that in 1825 £19, 19s. was the value of the subjects let, while in 1860 there were no additional buildings, and the whole were in worse repair than in 1825.

The pursuer pleaded—“(1) The decree sought to be reduced having been taken by the defenders against the pursuer when he was only nine years of age, and when he was known by them to be in pupillarity, it is null and void, and reducible. (2) The said decree having been pronounced, to the pursuer's great lesion, when he was a pupil and unable to defend himself thereagainst, the pursuer is entitled now to challenge the same, and to be restored thereagainst. (3) The pursuer, as heir of his great-grandfather and great-grandmother, the lessees in the tack, is entitled to have his right thereto declared, and to obtain decree of removing, as concluded for. (4) The pursuer is also entitled to count and reckoning, and decree for payment, in terms of the conclusions of the summons.

The defenders pleaded—“(1) The pursuer has not set forth, and does not possess, any right or title to sue or insist in the present action. (2) The statements of the pursuer are not relevant or sufficient to support the conclusions of the summons. (3) The arrears of rent at the date of the said decree having exceeded the value of the subjects let, and the said decree being in all respects regular and formal, and the defenders having entered into and continued in possession under the same, it cannot be set aside. (4) The statements of the pursuer being unfounded in fact, the defenders should be assoilzied.”