Scottish Court of Session Decisions

In April 1889 Miss Beattie of Glenmorven brought an action of removing against Robert Livingstone, a tenant on her estate, in the Sheriff Court of Argyllshire, to have him ordained to flit and remove from the houses and land and right of pasturage occupied by him at the term of Whitsunday 1889 under pain of ejection. Defences were lodged for Livingstone, and a record was made up in the action, upon considering which the Sheriff-Substitute on 1st June 1889 found that Livingstone was a crofter within the meaning of the Crofters Holdings (Scotland) Act 1886, and could not be removed from his holding except in consequence of a breach of one or more of the conditions enumerated in that Act, and therefore dismissed the action. Miss Beattie appealed against this judgment to the Court of Session, and the First Division of the Court in July 1889 allowed the parties a proof of their averments in common form, and remitted to the Sheriff to take the proof and proceed in the action accordingly. Evidence was thereafter led by the parties respectively, and the Sheriff-Substitute thereafter on 8th August 1889 pronounced decree of removing against Livingstone, which judgment was on appeal affirmed by the Sheriff-Principal on 19th October 1889.

The question before the Sheriff turned very much on whether or not Livingstone was resident on his holding at the passing of the Crofters Holdings Act.

On 27th November Miss Beattie gave Livingstone a charge to remove.

On 6th December Robert Livingstone brought the present note of suspension of the decree and charge.

The complainer averred that he was a crofter within the meaning of the Crofters Holdings Act 1886, and could only be removed in terms of that Act, and that the decree was erroneous in fact and law.

He pleaded—“(1) The decreets sought to be suspended, being unfounded in fact and erroneous in point of law, cannot be the foundation of legal diligence, and the same, together with the charge given thereon, ought to be suspended as craved.”

Miss Beattie lodged answers denying the complainer's averments.

The respondent pleaded—“(3) In any case the note should only be passed on caution being found for violent profits, and for payment of the expenses already found due, for which a charge has been given.”

The Lord Ordinary on 30th January 1890 passed the note on juratory caution, and remitted to Mr M'Lachlan, Sheriff-Substitute, Oban, to take the suspender's oath anent juratory caution, and to report.

“ Note.—This case has already been under the notice of the Court of Session, and their Lordships of the First Division, I understand, sent it back for further inquiry. The decision in the Sheriff-Court has now been against the defender, but it rather appears to me that the case raises certain novel questions in reference to and arising out of the Crofters Holdings Act, and that injustice might be done if the defender were not permitted to submit these questions to the Court of Session.”

From the report of the Commissioners the following facts appeared:—The complainer's estate, as stated in the inventory produced

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by him, amounted to £13, and his debts to £39, 2s. The rent of his holding due at Martinmas 1889, amounting to £3, was also unpaid. It had been offered to the respondent by the complainer, but refused by her. The complainer also deponed that he had about fifteen months before built a substantial cottage on his holding at a cost of £62, 10s. in money, and eleven weeks labour of himself and his nephew. The money had been borrowed from his sister, and was still due. He also produced a bond of caution by Hugh Lemard, fisherman, Tobermory, and deponed that he was the best cautioner he could find, but that he did not know what means he had. He believed he had not much; he did not know that he had any at all.

By the Act of Sederunt 14th December 1756, sec. 6, it is provided with regard to a bill of advocation or suspension of a decree or process of removing, that upon passing such bill, or at least within ten days after the date of the deliverance thereon, the complainer should find “sufficient caution, not only for implement of what shall be decerned as the advocation or suspension,” but also for damage and expense in case the same should be found due. If the complainer failed to find such caution the bill of advocation or suspension should be held as refused.

The respondent reclaimed, and argued that the note could only be passed on sufficient caution being found. Juratory caution was here the same as no caution at all. The Court always went on the principle that juratory caution must not be illusory—A.S., December 14, 1756; Marshall v. Gartshore, May 28, 1850, 12 D. 946; Logan v. Weir, July 16, 1870, 8 Macph. 1009.

At advising—