Scottish Court of Session Decisions

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Cite as: [1889] SLR 27_223, [1889] ScotLR 27_223

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SCOTTISH_SLR_Court_of_Session

Page: 223↓

Court of Session Inner House First Division.

Friday, December 20. 1889.

27 SLR 223

Bruce

v.

Henderson and Others.

Subject_1Process
Subject_2Special Case
Subject_3Competency
Subject_4Value of Cause — Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 63 — Jurisdiction — Crofters Holdings Act 1886 (49 and 50 Vict. cap. 29).
Facts:

A landlord and three crofter tenants applied to the Court by special case to determine which of certain alternative sums were due by each of the tenants respectively as rent under a decision of the Crofters Commissioners.

As none of the sums in question exceeded £25 the special case was dismissed as incompetent.

Headnote:

William Arthur Bruce of Symbister was proprietor of certain crofts in the crofting parish of Dunrossness, in the county of Zetland, of which Henry Henderson, John Sinclair, and Alexander Shewan were tenants. The tenants each lodged with the Crofters Commission an application to fix a fair rent.

The Commission on 6th November 1889 dealt with the application as follows:—

Present Rent.

Fair Rent.

Total Arrears

Arrears. Cancelled

Arrears Ordered to be Paid up.

Henry Hendersou, South Scousburgh,

£6 10 0

£5 0 0

…

…

…

John Sinclair, North Scous burgh,

6 0 0

4 4 0

£6 3 6

£4 3 6

£2 0 0

Alexander Shewan, Scatness,

8 15 0

6 15 0

5 0 0

5 0 0

…

The arrears were dealt with as at Martinmas 1888. In Shetland it is the custom to pay rent yearly at Martinmas.

The parties disagreed as to the date when the above decision began to take effect, and a special case was presented for the opinion of the Court as to whether the rent in each case payable at Martinmas 1889 was subject to abatement, and also whether the rents were made payable half yearly by the Crofters Holdings (Scotland) Act.

When the case was moved in Single Bills the Court sent it to the summar roll in order that its competency might be determined.

Argued for the parties—The questions between the first and second parties could be most cheaply determined under the present special case, nor was there anything against the competency of such a proceeding, for the Act of 1868, sec. 63, did not fix any pecuniary limit below which a special case was to be incompetent. Though the questions between the parties might be determined in an Inferior Court, yet as they had selected the Court of Session there was no incompetency in the matters in dispute being determined by means of a special case— Morton v. Gardner, February 24, 1871, 9 Macph. 548.

At advising—

Judgment:

Lord President—This is just an attempt to get the Court to exercise jurisdiction in a case where it has none.

The three crofters mentioned in this proposed special case were owing certain rents to the first party, their landlord as at Martinmas 1889, and the question between the parties is of very small amount.

In the case of Henderson the question is whether he is to pay £6, 10s. or £5; with Sinclair, £6, or £4, 4s.; and with Shewan, £8, 15s. or £6, 15s. Now, these sums can be recovered in the Court of ordinary jurisdiction but certainly not in this Court, and the proposal that we should decide whether the larger or smaller sum is to be paid is just to ask this Court to determine three small-debt litigations.

It is clear on the Statute of 1868 that nothing was intended to be made the subject of a special case except questions which could be raised by some other form of process in this Court, and this is not such a case.

Lord Adam—I am entirely of the same opinion. The Statute of 1868 when introducing special cases did not comtemplate extending the jurisdiction of this Court to a class of cases which prior to that date it could not competently have dealt with.

Here we have three small-debt actions by a landlord against his tenants, and it is proposed by grouping the three together to render competent a proceeding which could not for a moment have been entertained if any one of these actions had been brought separately. It would not in my opinion have made matters any better if twenty tenants had been grouped together, and I accordingly think that this special case should be dismissed as incompetent.

Page: 224↓

Lord M'Laren—I concur. The difficulty in dealing with these cases arises from the Act of Parliament limiting our jurisdiction. The Act is 50 Geo. III., c. 112, and clause 28 enacts that “all causes not exceeding the value of £25, shall from and after the passing of the Act be carried on in the first instance before the inferior judges in the manner directed, and with the exceptions specified in the Act passed in the third session of the second Parliament of His Majesty King Charles the Second, entitled “Act concerning the Regulations of the Judicatories.”

These relate to actions which but for those provisions could not have been instituted except in this Court.

Now, this is a cause not exceeding £25, and while there is no express restriction of jurisdiction in the clause quoted in the form of procedure by way of special case, I concur in the opinions which have been expressed in previous cases, and in the present case by your Lordships, that it must be dealt with under the same limitation as all other causes.

Lord Shand was absent.

The Court dismissed the special case as incompetent.

Counsel:

Counsel for the First Party— Salvesen. Agent— S. Greig, W.S.

Counsel for the Second Parties— C. N. Johnston. Agent— William Balfour, Solicitor.
1889