Scottish Court of Session Decisions

Lord Abinger raised this action against Ewen Cameron, crofter, Unachan, Inverness, to have it found “that the defender having, without the consent of the pursuer in writing, sub-divided the holding occupied by him under the pursuer, or otherwise having sub-let the same or part thereof, has thereby forfeited his tenancy of the croft at Unachan occupied by him on the pursuer's estate of Inverlochy, and is liable to be removed in manner provided by the fourth section of the Act of Sederunt anent removing, of the 14th day of December 1756, and to ordain the defender summarily to flit and remove himself from the said croft.”

The defender's croft was in the parish of Kilmonivaig, which had been declared a crofting parish in terms of the Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. c. 29), and it was admitted that the defender was a crofter in terms of the Act. By section 1 of said Act it is enacted, inter alia, that a crofter shall “not be removed from the holding of which he is tenant, except in consequence of the breach of one or more of the conditions following (in this Act referred to as statutory conditions),” among which statutory conditions it is, inter alia, enacted by sub-section 4 of section 1, as follows:—“The crofter shall not, without the consent of his landlord in writing, sub-divide his holding or sub-let the same, or any part thereof, or erect, or suffer to be erected thereon, any dwelling-house otherwise than in substitution for those already upon the holding at the time of the passing of this Act.” By section 3 of the Act it is, inter alia, provided that when the crofter has broken any of the statutory conditions “he shall forfeit his tenancy, and shall be liable to be removed in manner provided by the 4th section of the Act of Sederunt anent removing, of the 14th day of December 1756.” Section 33 of the Act provides—“Nothing in this Act shall apply to any holding or building let to a person during his continuance in any office, appointment, or employment by the landlord, or of any tenant of the landlord.” In this Act the interpretation of the word “tenant” is the same as in the Agricultural Holdings (Scotland) Act 1883 (46 and 47 Vict. c. 62), which defines the expression to mean “the holder of land under a lease.” Section 34 of the Crofters Holdings Act provides—“In this Act ‘crofter’ means any person who at the passing of this Act is tenant of a holding from year to year, who resides on his holding, the annual rent of which does not exceed £30 in money, and which is situated in a crofting parish, and the successors of such person in the holding being his heirs or legatees.”

The pursuer averred—“Angus MacIntyre, road contractor, presently occupies a dwelling-house and pertinents on said croft other than the house which is occupied by the defender, and also a piece of ground forming part of said croft. The defender has, without the consent of the pursuer in writing, sub-divided his holding, or otherwise the said defender has sub-let the same or part thereof, in contravention of the said section 1, sub-section 4, of the said Act, to the said Angus MacIntyre.”

The defender denied this, and explained that he occupied his croft at and prior to the date of the Crofters Act, and that he had not sub-divided or sub-let his holding to Macintyre, who, he averred, was his servant.

The pursuer pleaded—“(1) The defender having, without the consent of his landlord (the pursuer) in writing, sub-divided his holding, or otherwise sub-let the same, or part thereof, and having thereby contravened one of the statutory conditions of the Crofters Holdings (Scotland) Act 1886, his tenancy has been forfeited, and decree of removing should be granted as craved, with expenses.”

The defender pleaded—“(1) The defender, not having sub-divided his holding, or any part thereof, and not having made any change in his occupation or possession of the same, the present action is unfounded, and the pursuer is not entitled to remove him from his holding.”

The facts of the case appear from the evidence of the defender quoted in the opinion of the Lord President infra.

The Sheriff-Substitute ( Simpson) allowed a proof, and thereafter on 15th September 1887 pronounced the following interlocutor:—“Finds that the defender, who is a ‘crofter’ within the meaning of the Crofters Holdings (Scotland) Act 1886, has, without the consent in writing of his landlord, the pursuer, sub-divided the holding occupied by him, the defender, under the pursuer at Unachan, Inverlochy, in contravention of the statutory condition, or the part thereof relating to sub-division of holdings set forth in sub-section four, section first, of the said Act, and has thereby forfeited his tenancy of the said holding: Therefore repels the defences,

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and ordains the defender to remove from his holding under the authority of the third section of the statute, and in terms of the conclusions of the petition, and decerns.”

On appeal the Sheriff ( Ivory) on 19th October 1887 pronounced the following interlocutor:—“Recals the interlocutor appealed against: Finds in point of fact (1) that in 1875 Angus MacIntyre was engaged as a servant by the defender's father to assist him in working the croft in question, which the defender's father then held as tenant of the pursuer, his wages being then £24 a-year and his board; and that for a period of about two years he lived in the same house with the defender and his father, and worked upon the croft; (2) that in 1877 MacIntyre married, and was then allowed by the defender's father to enter into possession of the house he now occupies, while he at the same time got the use of a cow's grass on the hill; but in consequence of these privileges his wages as a servant were reduced to £20; (3) that in 1879 the defender's father died, and the defender succeeded to the croft, and that for two years thereafter MacIntyre continued to occupy the house, and to work on the croft as the defender's servant, for the same wages and on the same terms as during the two previous years; (4) that in 1881 there was less work for MacIntyre on the croft, in consequence of a part of the latter having been taken from the defender by the pursuer, and a new arrangement was entered into, under which MacIntyre engaged to serve the defender for a year, from Whitsunday to Whitsunday, at the reduced wages of £14, with the house and cow's grass as before, while he was to get in addition a small piece of the croft, consisting of arable ground of two acres or thereby, on part of which he planted potatoes and oats, and the remainder was kept in grass; that it was part of this arrangement that MacIntyre was to work on the defender's remaining portion of the croft all the year round whenever the defender required him; that when not working there, he was to work for the defender on the roads, for which the latter was contractor; and that when the defender had no work for him either on his croft or on the roads, he was to be allowed to work for himself where he pleased; (5) that at the date of the passing of the Crofters Act, viz., 25th June 1886, the said small piece of arable ground did not form part of the defender's holding in the sense of the Act, but the same was then held, occupied, and used by MacIntyre, as it had been since 1881, as part of the privileges enjoyed by him as servant of the defender; (6) that from the year 1881, when the said arrangement was entered into, down to 30th June 1887, when the present action was raised, MacIntyre continued to act as defender's servant from year to year under the arrangement entered into in 1881, and enjoyed the privileges thereby conferred on him, the only difference being that at Whitsunday 1886 MacIntyre himself, with the defender's consent, became contractor for a small portion of the roads in the neighbourhood, but he had another man assisting him in carrying out his own contract, so that the latter did not interfere in any way with his duly carrying out his contract of service with the defender: Finds in law, in the circumstances above stated, that the pursuer is not entitled to remove the defender from his holding, in respect that the latter has not sub-divided or sub-let his holding, or any part thereof, since the date of the passing of the Crofters Holdings (Scotland) Act 1886, and has not contravened any of the statutory conditions of the said Act, and separatim, in respect that, even if the defender had so sub-divided or sub-let his holding or any part thereof, the same having been let to a person in the employment of the defender (who was a tenant of the landlord), is especially exempted from the application of the Act by the 33rd section thereof: Therefore sustains the defences, assoilzies the defender, and decerns: Finds the pursuer liable in expenses,” &c.

The pursuer appealed, and argued—The contravention of the Act was clear. There was here both sub-division and sub-letting without consent of the landlord. The condition of the defender's holding forbade this. He could not argue that the statute which dealt with such a wrong did not apply to a wrong begun before the Act passed. To keep MacIntyre on his croft was as bad as putting him there after the Act passed. There was sub-letting. This was a year to year holding, and to suffer tacit relocation after the expiry of the first term was equal to giving a new lease. The defender said that there was no contract of lease. It was, then, inconsistent to rely on section 33 of the Act, which defined a tenant to mean the holder of land under a lease. To benefit by section 33 he must show that “tenant” was equivalent to “crofter,” whereas all throughout the statute the two terms were distinguished from each other. To apply section 33 to such a case would only be to legalise the sub-division of crofts which the rest of the Act forbade. Besides, section 33 was merely a disabling section, and could not be relied on by the defender for the purposes of this case. In point of fact the so-called servant was in an independent-position. He had a man to assist him, and besides, he made use of bis separate house by boarding a pauper lunatic. [ Lord President—The difficulty I have is in regard to the previous occupation of MacIntyre. Suppose the croft was sub-divided with the landlord's consent, what then?] Before the statute passed he had no fixity of tenure as he had under it. In regard to the pursuer, all that was said of him was that before the Act he connived at this separate occupation. But the defender could not plead that he carried into what was a new transaction under the Act all the elements of what formerly was simply a precarious tenure. The Act required writing, and the defender had no writing to show.

Argued for the defender—There was no subdivision here; that meant partition among the members of a family. There was no lease here, and therefore it was not a case of sub-lease. The circumstances were outside the Act altogether. If the pursuer prevailed, no crofter could remunerate a servant in what was in Scotland a usual manner, and this would be a great hardship. Since 1881 there had been no change in the relations of the defender and MacIntyre. The landlord had known them all along. The Act put him in no better position, and he was barred by his previous acquiescence.

At advising—