Scottish Court of Session Decisions

By letter dated in April 1876 Alexander Allan of Aros, in the island of Mull, offered James Sinclair a lease of a house, smithy, croft, and grazings at the annual rent of £20 for either seven or fifteen years. Without sending a formal acceptance of this offer, Sinclair entered into possession of the subjects, and continued to occupy them at the stipulated rent until his death in July 1880. After his death his widow and son continued to occupy the subjects. In May 1891 Archibald Macmillan, who had got a lease of the subjects from Mr Allan, with his consent presented a petition in the Sheriff Court at Oban craving to have Mrs Sinclair and her son removed from said subjects at Whitsunday 1892. In defence to this petition Mrs Sinclair and her son pleaded that Mrs Sinclair occupied the subjects from year to year, and was a crofter within the meaning of the Crofters Holdings Act 1886, and could not be removed except by reason of the breach of one or other of the conditions therein enumerated. The Sheriff-Substitute, holding that Mrs Sinclair was not a crofter, granted the prayer of the petition, and on appeal his interlocutor was affirmed by the Sheriff. Upon this decree Mrs Sinclair and her son were charged to remove.

Mrs Sinclair and her son thereupon brought a suspension of the charge.

The complainers averred—“(Cond. 2) … Since 1882 she (Mrs Sinclair) has been sole tenant from year to year of the subjects, and in particular, she was sole tenant

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thereof at the passing of the Crofters Act 1866, and was uniformly returned as such by the landlord Mr Allan to the assessor of the county.… She can only be removed subject to the conditions enumerated in said Act. (Cond. 3) But if it be held that she (Mrs Sinclair) was not entitled to the privileges of the Crofters Act, but was tenant under a lease as averred by respondents, then she is tenant in the sense of the Agricultural Holdings Act 1883, and is entitled to receive the statutory notice there provided for. She has not received said notice, and the said decree and charge are therefore invalid and inept.”

The respondents denied these averments, under the explanation that as the complainer Colin Sinclair was a mere child at his father's death, the respondent Alexander Allan returned the complainer Mrs Sinclair as tenant.

The respondents pleaded that the complainers should, ante omnia, be ordained to find caution in common form.

On 16th July 1892 the Lord Ordinary on the Bills (Low) passed the note on juratory caution, and granted commission to the Sheriff-Substitute, Oban, to take the suspender's oath anent juratory caution.

The respondents reclaimed, and at the hearing it was remarked from the bench that the proceedings had not been strictly in accordance with the Act of Sederunt of 11th July 1828, sec. 3, in respect that the note was passed before the deposition of the complainer was received.

Argued for the respondents—The rule in suspensions of removings was that “sufficient caution” must be found—Act of Sederunt 1756 (anent removings). The ordinary application of that rule was that the suspender was required to find caution in ordinary form. In some cases no doubt notes had been passed on juratory caution, but only where there was special reason to believe that injustice would be done by requiring caution to be found in ordinary form— Logan v. Weir, July 16, 1870, 8 Macph. 1009; Livingstone v. Beattie, March 19, 1890, 17 R. 702. Here there was no special reason for departing from the ordinary rule. The Sheriffs had both decided that the complainer Mrs Sinclair was not a crofter, but that she possessed the subjects under the lease, and prima facie that view was right. The point now stated in regard to the want of the necessary notice under the Agricultural Holdings Act was a technical one; it had not been taken before the Sheriff, though it might competently have been pleaded; and the subjects seemed not to be of the nature of a holding under that Act — Taylor v. Earl of Moray, January 23, 1892, 19 R. 399. The respondents did not wish to found on the irregularity in the procedure, but desired to have the question as to caution settled by the Court.

Argued for the complainers—There was here a question to be decided upon the construction of the Crofters Act as in Livingstone's case. The fact that the landlord had returned Mrs Sinclair as a yearly tenant to the valuation roll was important. In a question with the landlord, or anyone deriving right from him, that return was proof of the tenant's position— Elmslie v. Duff, June 2, 1865, 3 Macph. 854. If Mrs Sinclair was not a crofter, then the complainers were tenants under the Agricultural Holdings Act, and entitled to the statutory notice, and the want of that notice rendered the decree of removal invalid. In either view, injustice might be done by requiring caution to be found in ordinary form. The question of what caution should be required was not one as to which the Court would be inclined to interfere with the Lord Ordinary's discretion.

At advising—