Scottish Court of Session Decisions

By application dated 14th April 1890, Peter Livingston, Archibald Henderson, and James Henderson, as crofters on the farms of Ardslignish and Camus-na-gaul in the parish of Ardnamurchan, Argyllshire, applied to the Crofters Commissioners for an order fixing fair rents for their respective holdings. They described themselves as holding of Angus M'Millan, the tenant of the farms of Ardslignish and Camus-na—gaul, whom they set forth in the schedule as “the landlord,” and who was the only party called as respondent. No intimation was made to John James Dalgleish, the proprietor, or Lawrence Dalgleish, the liferenter, of the said farms, and neither of them made any appearance in the proceedings.

The Crofters Commission, consisting of one of the Commissioners and two assessors acting under the powers delegated in virtue of the Act 51 and 52 Vict. cap. 63, sat at Tobermory in June 1890 and inquired, inter alia, into the said applications. The tenant M'Millan was represented by Mr Scott of Messrs Scott & Craig, writers, Glasgow, who appeared in some other applications by crofters for J. Dalgleish, the proprietor. Mr Armstrong, factor for the estate of Ardnamurchan, was present during the inquiry.

The tenant M'Millan objected to the applications on two grounds, (1) that the applicants did not reside on their holdings, and (2) that they did not possess any right of grazing on Ardslignish or Camus—na-gaul. These objections were on 27th August 1890 both repelled, and it was found that the applicants had the right of grazing which they claimed. Accordingly, by order in each case of same date, the Commissioners fixed and determined a fair rent for each of the applicants. On 16th June 1892 the Sheriff of Argyllshire interponed authority to each of said orders, and decerned in terms thereof.

In these circumstances Laurence Dalgleish, the liferenter, and Hugh M'Millan, the tenant of the farm of Ardslignish and Camus-na-gaul, as eldest son and heir of his father, Angus M'Millan, who had died, raised an action against Peter Livingston, Archibald Henderson, and James Henderson for reduction of (1) the order of the Crofters Commissioners, and (2) the decree of the Sheriff pronounced conform thereto, and for decree ordaining the defenders to remove from the said farm.

The pursuers pleaded—“(1) The said defenders being merely sub-tenants on the said farms of Ardslignish and Camus-na-gaul, were not crofters in the sense of the Crofters Holdings (Scotland) Act 1886, and were therefore not entitled to apply for or to obtain the benefits of that Act.

The defenders pleaded, inter alia—“(1) The action is irrelevant and incompetent. (2) The Crofters’ Commission having decided that the defenders are crofters, the present action is excluded by the finality clause of the statute under which the proceedings challenged were taken. (3) The pursuer Dalgleish having authorised or permitted his said tenant to represent his interest before the Crofters Commission, is barred by personal exception from now objecting to the said proceedings complained of. (4) The said Angus M'Millan, the predecessor

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of the pursuer M'Millan, having made himself a party to the said proceedings without maintaining the question now raised, has no title to insist in this action.”

A proof was heard, which brought out the above mentioned facts, and showed that the defenders were sub-tenants holding of the principal tenant, M'Millan.

By section 20 of the Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29) it is enacted—“When an application is made to the Crofters Commission to fix a fair rent, intimation thereof shall be given to the other party interested in the holding, landlord or tenant as the case may be, and the Crofters Commission shall appoint a time and place at which parties shall be heard in reference to the matter of the application.”

By section 21 of the said Act it is enacted, inter alia—“In the event of any dispute arising as to whether a person is a ‘crofter’ within the meaning of this Act, it shall be competent for the Commissioners to determine such question summarily.’

Section 25 of the said Act enacts—“The decision of the Crofters Commission in regard to any of the matters committed to their determination shall be final.”

On 28th November 1894 the Lord Ordinary ( Kincairney) pronounced the following interlocutor—“Finds (1) that the orders of the Crofters Commission, dated 27th August 1890, are not subject to reduction at the instance of the pursuers; (2) that the pursuers are barred from denying that the defenders are crofters in the sense of the Crofters Act; (3) that the pursuers are therefore not entitled to decree of removing: Therefore assoilzies the defenders from the conclusions of the summons.” …

“ Note. —The pursuer, Laurence Dalgleish, is liferenter of the farm Ardslignish, forming part of the estate of Ardnamurchan, belonging to John James Dalgleish, and the pursuer, Hugh M'Millan, is tenant of the farm. The three defenders—Peter Livingston, Archibald Henderson, and James Henderson — are in possession of holdings on that farm, either as crofters or sub-tenants, that being a point in dispute in this case. The pursuers now seek to reduce certain orders obtained by the defenders from the Crofters Commission fixing rents for their holdings, and decrees conform by the Sheriff of Argyllshire, and they conclude for decree of removing of the defenders from their holdings on the ground that the defenders were not crofters but sub-tenants.

“The Crofters Commission, consisting of one of the Commissioners and two assessors — acting under the powers delegated in virtue of the Act 51 and 52 Vict. cap. 63— sat at Tobermory in June 1890, and inquired into the cases of the crofters on the Ardnamurchan estate, of which 141—including the defenders' application—were laid before them. Mr Armstrong, factor of the estate of Ardnamurchan, including Ardslignish, was present during the whole inquiry; and the proprietor, John James Dalgleish, was also represented by Messrs Scott & Craig, writers, Glasgow. These gentlemen took their instructions from Dalgleish & Bell, W.S., agents for John James Dalgleish and the pursuer, Laurence Dalgleish. It is in evidence that the pursuer, Laurence Dalgleish, was constantly in that office, and transacted factory business for the firm.

“At the time of the inquiry, there prevailed an opinion on the part of the Crofters Commissioners, and they had so decided, that sub-tenants of holdings of the character described in the Crofters Act were, as such, crofters in the sense of the Act. Applications by sub-tenants were entertained by them without question; and in these cases it was the practice to insert the name of the principal tenant in the blank left for the name of the landlord in the form of application issued by the Commissioners. This practice was sanctioned and recognised by the Commissioners. In accordance with this practice, in each of the applications presented by the defenders, Angus M'Millan, now deceased (father and predecessor in the farm of the pursuer Hugh M'Millan), is stated to be the landlord. The inquiry into these three applications took place at the same time as the inquiry into the similar applications from the Ardnamurchan crofters. Nointimation of them was made to the pursuer, and no instructions to attend to them were sent from the office of Dalgleish & Bell. Appearance was entered in them however by Mr Scott as agent for Angus M'Millan, the principal tenant. But Mr Armstrong, the factor, was present during the proceedings. Mr Scott reported to Dalgleish & Bell the result of these inquiries, along with the result of other inquiries about the Ardnamurchan crofters. They are included in a synopsis of the decisions of the Commissioners, relating to the Ardnamurchan estate, made up by Mr Craig, and transmitted to Dalgleish & Bell; and charges in reference to them are entered in an account rendered by Scott & Craig for the services rendered by them in connection with the Ardnamurchan inquiries to Dalgleish & Bell, and were paid by them.

“All parties connected with the inquiry supposed that sub-tenants might petition as crofters; and that in these cases it was proper that the principal tenant should be entered as landlord. It was decided in the case of Livingston v. Beattie, March 19, 1891, 18 R. 735, that that view was erroneous, and that sub-tenants were not, as such, crofters under this Act.

“I am fully satisfied on the evidence that no misapprehension as to the ownership of these holdings was occasioned by the form of the defenders’ application, or by the statement in them that Mr M'Millan was landlord. I am satisfied that it was fully understood by all parties concerned, including the Commissioners, that they were sub-tenants’ applications, and that the holdings formed part of the estate of Ardnamurchan. I do not say that there is any direct evidence as to this knowledge or understanding of the Commission, but the contrary was not suggested, and I think it is deducible from the evidence. No proposal was made to examine the Commissioner

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or his assessors, and it is proper here to notice that the pursuer Laurence Dalgleish did not give evidence, and did not call as witnesses either the tenant M'Millan or Mr Scott or Mr Craig. His only witnesses were Mr Robertson, managing clerk in the office of Dalgleish & Bell, whose evidence was unusually complete, distinct, and satisfactory, and Mr Armstrong, the factor.

“In each of the applications certain objections were stated on behalf of the tenant M'Millan, and were minuted. It is not necessary to particularise them. They do not bear on the point now made by the pursuers, viz., that the defenders were not crofters qua sub-tenants. That point was not taken. The objections were all overruled by the Commission, and no special objection has been stated to these deliverances.

“Besides overruling these objections the Commission fixed the fair rents of the holdings, and in one case the amount of arrears payable. The orders under reduction do nothing more, and, in particular, they do not expressly find or declare that the applicants are crofters.

“The first question is, whether these orders are now open to reduction? There are two pursuers—the landlord and the tenant—and they stand in different positions in regard to this question, and I think it necessary, or at least convenient, to consider them separately.

“I take first the case of the tenant, which was presented in argument as if the pursuer Hugh M'Millan had been the tenant who appeared at the inquiry, or as if Angus M'Millan, who appeared at the inquiry had been pursuer, and I take the case so.

“I have formed the opinion that the orders are not reducible at the tenant's instance, and that because of the provisions in section 25 of the Act, which enacts that ‘the decision of the Crofters Commission in regard to any of the matters committed to their determination by this Act shall be final.’ Although the orders contain no express declaration or affirmation that the defenders were crofters, yet it was assumed at the debate that that must be held to be their import and effect, and probably that is so, and adopting that view I am of opinion that these orders are protected from challenge. It was contended for the pursuers that, if an order determining whether an applicant was a crofter or not were held to be final, that was in effect determining that the Commission was entitled by a final deliverance to interpret the statute and to decide as to its own jurisdiction. It was maintained that it was never held to be committed to a judge to determine as to his own jurisdiction, that the 25th section could only protect from challenge orders within the jurisdiction of the Commission, and that the clause did not apply to an order beyond the jurisdiction, nor to an order purporting to determine the jurisdiction. But assuming that argument to be sound, the answer to it is, that the power to decide whether an applicant is a crofter or not is expressly conferred on the Commission, and that they are therefore competent to determine finally to this effect the extent of their own jurisdiction, because it is expressly provided at the close of section 21, that ‘in the event of any dispute arising as to whether a person is a crofter within the meaning of this Act, it shall be competent for the Commissioners to determine such question summarily.’ These words are unambiguous, and I am unable to limit them as contended for by the pursuers to questions arising incidentally in the course of the inquiry. It appears to me that they unambiguously commit to the Commission the power of disposing of the question whether an applicant is a crofter summarily, and according to section 25 finally.

“Now, objections were stated by M'Millan challenging the right of the defenders to make application as crofters, and these objections were repelled. I am disposed to hold that it follows that the Commission thereby decided that the applicants were crofters.

“I have pointed out that the orders do not decide that expressly, and there was certainly no decision on the question whether sub-tenants were crofters. Presumably on this occasion the Commissioners did not apply their minds to that question because it was not raised. Apart from the special objections stated, it was conceded that the defenders were crofters, and the case is in the same position as if M'Millan and the defenders had come before the Commission expressly admitting that the defenders were crofters. In my opinion the pursuer M'Millan is bound by that tacit admission, and is not entitled now to go back on it.

“But it is said that Laurence Dalgleish, the liferenter, is in a different position, and cannot be bound by the orders of the Commission, because he was not a party to the proceedings in which they were pronounced, and because as regards him they are res inter alios acta. A question might be raised whether in that view he, the pursuer, would have a title to challenge decrees pronounced in actions to which he was not a party. But it is maintained that he has a title, because they affect his estate. I do not find it necessary to solve this point, but assume the landlord's title to pursue the reduction. But I think he is not entitled to prevail. If the Crofters Commission were a court of law, and if this were a question of legal process, or a question about the decree of a court of law, there might be much force in the contention. But I apprehend that the Crofters Commission is not a court of law, as seems clear from the case of the Duke of Argyll v. Cameron, 24th November 1888, 16 R. 139, and that the proceedings before the Commission were not litigations. The Commission was making a local inquiry, not determining a law suit, and I think that the rule that a decree cannot affect one who is not a party. to the litigation in which it is pronounced has no application. There is no such technical rule or difficulty, and the question comes to be whether the pursuer, L. Dalgleish, suffered injustice or

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disadvantage by the application not having been intimated to him by the Commission. If it could be said that the essential principles of justice had been disregarded, as, for instance, that orders had been pronounced behind the back and without the knowledge of the proprietor, or that the proprietor had not been allowed to take part in the inquiry, I think that he might perhaps be relieved from the orders by a reduction, or might be entitled to plead that they did not affect him. But nothing of that kind can be said or has been said. The pursuers have not come forward as witnesses, but plainly, and I think admittedly, Mr L. Dalgleish was as fully aware of these applications as of any of the other applications about which, as the person who attended to the factory business in the office of Dalgleish & Bell, he must have been personally fully informed. Besides, he was represented at the inquiry by Mr Armstrong, the factor, and of course he was not only aware of these applications, but was necessarily aware that they purported to affect his interests in the lands after the expiry of M'Millan's lease. No doubt he might have intervened if he had chosen, and he might have appealed to the three Commissioners under the 27th article of the rules and regulations framed and approved of under the Act. (See C. N. Johnston's Crofters Holdings Act, p. 63.) The pursuer's letter of 11th November 1893 shows that he was quite aware of his right to appeal, and was also aware of the decision in the Outer House in the case of Livingstone v. Beattie.

“In these circumstances I cannot see how the pursuer, the proprietor, can escape the effect of the 25th section of the statute unless he can maintain that the proceedings before the Commission were in a strict sense litigious, and that their orders were decrees of a court of law, which — as already said—is not, in my opinion, the character of the proceedings or of the orders.

“For these reasons I am of opinion that Laurence Dalgleish, the proprietor, cannot, any more than M'Millan, the tenant, be heard to maintain that the defenders are not crofters. I hold that it has been finally determined that they are, and that in any view the pursuers are barred from pleading that they are not.

“It is admitted that if the orders of the Commission cannot be reduced, the decrees conform by the Sheriff are unobjectionable.

“The defenders further maintained that admitting that sub-tenants were not as such crofters, yet that the Commission in deciding them to be crofters had arrived at a sound conclusion, because the tenure of their holdings was really that of a crofter, and because they held directly of the proprietor. They say that they were in error in applying as sub-tenants; but that they should not be prejudiced by that error, seeing that according to the law administered by the Crofters Commission it was indifferent in which character they applied, and they were not put to consider their true legal position. In the view which I have taken of the preliminary question it is not necessary for me to decide this point. But as proof was led about it, and as it was fully argued, it is perhaps proper that I should indicate very briefly the views which occur to me on the point. When the evidence is examined it will be found that there is very little of it which throws much light on this question, and very few considerations which affect it.

“The holdings are traced back to 1849 by the lease dated in that year. Mr Dalgleish purchased the estate in 1856, and from the rentals of the estate from that date until 1872 it appears that no rent was paid to the proprietors for these holdings. But from 1872 to 1875 the farm of Ardslignish went out of lease, and during that period rent for the holdings was paid to the landlord under a written contract. The pursuers did not dispute that if the Crofters Act had then been in force the holdings must during these three years have been held to have been crofts and the tenants of them crofters, because they were holding of no one but the proprietor. But the Crofters Act was not passed till June 1886, and the pursuers contended that the question was whether the defenders were crofters at that date; if they were, they were crofters still; if they were not, they were not crofters now.

“For the pursuers it is contended that seeing that since 1875 the rent for the holdings was always paid to the tenant, and that there was no proof of any contractual relation subsisting between them and the landlord during that period, it must be concluded that they held under the tenant and not directly under the proprietor; and further it was submitted to be important and suggestive that when they had no motive one way or the other they presented their applications to the Commission as sub-tenants.

“The defenders contended that there was nothing which brought to an end the relation of landlord and tenant, which admittedly subsisted between them and the proprietor from 1872 to 1875; that they had never been treated as sub-tenants who were excluded by the leases; that it appeared that when questions as to erecting buildings arose, the permission of the proprietor was asked; and that, looking to the long period during which their holdings had been possessed, they ought to be regarded as being in the position referred to in the opinion of Lord Kinnear, concurred in by Lord M'Laren, in the case of Livingstone v. Beattie, to the effect that it might be that an occupier might be a tenant of the proprietor, notwithstanding the facts that his holding lay within the bounds of a farm, and that he paid rent to some one else than the landlord.

“My own impression on a consideration of the evidence is, that it has not been made out that the defenders were truly crofters. I think that at 1875 the occupants of these holdings ceased to be tenants of the landlord, and were thereafter sub-tenants of the principal tenant, removable by him and by

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him alone unless under the clause of the lease excluding sub-tenants; and I have great difficulty in seeing how an application could be directed against a landlord for reduction of a rent which was not payable to him, and—as in one of the cases —for relief from arrears due not to him, but to the tenant. But my opinion is that the question cannot be raised now. It has been settled by the Crofters Commission; and—if erroneously—the error I apprehend cannot now be rectified.

“With regard to the conclusions for removing, it is enough to say that these cannot be granted on the demand of the tenant, because in a question with him it has been finally decided that the defenders are crofters; nor in a question with the proprietor, because he is equally met by the orders of the Commission, and for the further reason that if he were held not bound by these orders, the defenders in that view would not be his tenants, but sub-tenants in whose sub-tenancy he acquiesced.”

The pursuers reclaimed, and argued—The Lord Ordinary had reached an erroneous conclusion. (1) No intimation of the applications had been made to Mr Dalgleish. Angus Macmillan had not been called as representing or agent for the landlord, but as the landlord himself. The defenders had thereby admitted they were subtenants. Section 20 of the Crofters Act 1886 required intimation to be made to the proprietor, and no intimation having been made to Mr Dalgleish, and he not being a party to the proceedings, the whole proceedings were invalid and must be reduced — M'Laren v. Finlay, December 12, 1835, 14 S. 143; Wallace v. Hume, July 3, 1835, 13 S. 1034; Brown v. Heritors of Killeny, November 15, 1825, 4 S. 174. (2) It was clear from the decision in Livingstone v. Beattie, March 19, 1891, 18 R. 735, that the defenders as matter of fact were sub-tenants, and not crofters within the meaning of the Act. No dispute had arisen before the Commission as to whether the defenders were crofters or not. So even if it was assumed that all parties interested were represented before the Commission, no decision upon the point had been given by the Commissioners, and therefore sections 21 and 25 of the Act did not apply. (3) Even if sections 21 and 25 did apply, these sections only referred to the form of procedure before the Commission; they did not extend the jurisdiction of the Commission. The Commissioners had no jurisdiction, if a dispute arose between a landlord and a tenant as to whether the latter was a crofter, to construe the statute so as to determine whether the tenant was or was not a crofter in the sense of the Act—opinion of Lord M'Laren in Stuart & Stuart v. Macleod, December 8, 1891, 19 R. 231. A clause such as section 25, giving finality to the decision of a Commission which was not a court of law, must not be construed so as to give power to that Commission to determine whether in law a certain class fell or did not fall within the statute; it merely entitled them to decide on matters of fact and detail— Lord Advocate v. Perth Police Commissioners, December 7, 1869, 8 Macph. 244; Traill's Trustees v. Grieve, July 11, 1890, 17 R. 1115.

Argued for the defenders, inter alia— The decision of the Lord Ordinary with regard to the finality of the decision of the Commissioners was right, and the reasoning in his note was sound.

Daring the hearing of the case John James Dalgleish was sisted as a pursuer in the action.

At advising—