Scottish Court of Session Decisions

The Crofters Holdings (Scotland) Act 1886, sec. 25, provides—“The decision of the Crofters Commissioners in regard to any of the matters committed to their determination by this Act shall be final.” Section 28 provides—“Any order of the Crofters Commissioners … may be presented to the Sheriff, and the Sheriff if satisfied that the order has been made in conformity with the provisions of this Act and has been duly recorded, may pronounce decree in conformity with such order on which execution and diligence may proceed.”

Archibald Cameron and others, crofters in the island of Tiree, presented an application in December 1886 to the Crofters Commission in terms of the Crofters Holdings (Scotland) Act 1886, praying the Commission to fix the fair rent

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to be thereafter paid by them for their holdings, and dealing with arrears.

After sundry procedure the said Commissioners in October 1887 pronounced an order which was duly recorded in the Crofters Holding Book for the county of Argyll at Tobermory. The schedule appended to the order set out—(1) The total amount of arrears due by the applicants; (2) the amount cancelled; (3) the amount ordered to be paid; (4) the number of instalments; (5) the amount of each instalment and the dates when payable.

In June 1888 the Duke of Argyll presented a petition in the Sheriff Court of Argyllshire at Oban, against the said Archibald Cameron and others, and prayed the Court to interpone authority thereto, and to pronounce decree in conformity therewith. He pleaded that he was entitled to decree as craved in terms of the Crofters Holdings (Scotland) Act 1886, sec. 28, with expenses.

On 27th July 1888 the Sheriff-Substitute ( MacLachlan) refused the motion for the pursuer that the cause should be tried summarily, continued the cause until the first vacation court, and allowed the defender to lodge defences within that time.

“ Note.—The pursuer contended that parties should be heard summarily, but as the Crofters Holdings Act makes no provision for summary procedure in applications such as the present, the Sheriff-Substitute was obliged to refuse the pursuer's motion as incompetent. It is also to be noticed that the warrant for service obtained on the pursuer's application is in the ordinary form, and not in the form provided by section 52 of the Sheriff Courts Act 1876 for having causes disposed of summarily.”

The pursuer appealed to the Sheriff ( Forbes Irvine) who on 22nd September 1888 sustained the appeal, interponed authority to the said order, and granted decree in terms thereof.

Note.—The Crofters Commission not being a court of record, their orders can be enforced only through the interposition of a court of law. The Act therefore provides, by section 28, that ‘any order of the Crofters Commission or two of their number acting as hereinbefore provided may be presented to the Sheriff, and the Sheriff, if satisfied that the order has been made in conformity with the provisions of this Act, and has been duly recorded, may pronounce decree in conformity with such order on which execution and diligence shall proceed.’ The statute does not set out any precise form in which this and similar applications may be made, but it may be remarked that soon after its passing it was ably analysed and annotated by Mr C. N. Johnstone, advocate, who added a set of suggested forms, many of which have not been superseded by the official forms issued by the Commission (Rankine on Leases, p. 513, note 1). The application by the pursuer in the present case is substantially in terms of one of these forms (No. 8, p. 60).

Neither does the Act point out any particular mode of inquiry by which the Sheriff before pronouncing this ‘decree conform’ is to satisfy himself that the order of the Commissioners, or the decision of a single arbiter mutually chosen (section 30), is in conformity with the statutory provisions. It would, indeed, seem that this important matter is left pretty much to the discretion of the Judge, subject always, as his decision is, to the review of the higher Court. In the present case, however, owing to the form which the cause took in the first instance the Sheriff has had the advantage of the able pleadings of the parties on the question at issue.

“It is indeed true that the Act does not say in set terms that the proceedings under it are to be summary, but this would seem to be in conformity with the general tone and tenor of the statute. By section 25 the decision of the Crofters Commission is final. The pursuer has here produced an order by the Commissioners, with a certificate thereon that the same has been recorded in the book kept for that purpose by the Sheriff Clerk in terms of section 27 of the Act, and it does not appear to be contemplated that a formal record should be made up, with its necessary delay and eventual cost; it indeed seems difficult to conceive a case where it is more for the interest of all parties that the question at issue between them should have an early settlement.”

The defenders appealed to the Court of Session, and argued that they were entitled to lodge defences, as the Act nowhere said that the procedure under it was to be summary.

The respondent argued that the appeal was incompetent. Sec. 25 of the Act declared that the decision of the Commissioners was to be final. The Sheriff had pronounced decree in terms of sec. 28, and there was nothing to appeal from. The proceedings were summary— Bone v. School Board of Sorn, March 16, 1886, 13 R. 768.

At advising—