Scottish Court of Session Decisions

Lord President—A party asking the indulgence of being allowed to find juratory caution instead of sufficient caution must first show that he has something to say for his case on the merits; that he has some reasonable ground on which he can show that he will ultimately prevail in suspending the removing. But I look in vain for that here. The complainer's defences in the Inferior Court are untenable. The complainer apparently possessed on tacit relocation. If not, then he had no foundation at all for his possession. He plainly had no right. He was there either on tacit relocation or mere sufferance. He says (1) that the summons did not found on the tack, &c. (reads lst, 2d., and 3d objections.) All these are bad. This is a removing under the 2d section of the A. S., and the summons of removing was to come in place of warning under the Act 1555. When a summons of this kind is instituted before a Judge Ordinary, and called forty days before the term, it is equivalent to a warning in terms of the statute, and the judge is to determine in the removing in terms of that Act, in the same way as if a warning had been executed in terms of the Act of Parliament. Now, this summons sets forth that the complainer ought, in terms of the A. S. and Act of Parliament, to be ordained to flit and remove himself, &c. from the said farm and lands as then occupied and possessed by him on tacit relocation, and to leave the same void, to the effect the pursuers of the removing might enter thereto and peaceably possess the same in time coming. It seems to me that it would be very dangerous to hold that anything more precise is necessary in such a summons of removing. There is neither authority nor necessity for it. The defender may prove his title of possession. If he has it, it will be a good answer. If he has not, I don't see why he should not remove on warning. Therefore the defences in the Inferior Court are out of the question and cannot be made available. But it is said that, since decree of removing, there have been negotiations which have resulted in an agreement, one part of which was, that the complainer was to get a new title in the form of a liferent lease. It is plain to me, on the complainer's own showing, that that is untenable, and that he has no right to get that new title. If he had such a right, one would have expected that he would have enforced it long ago. There is some peculiarity in this that the decree of removing has not been enforced for so long a period. But it is plain that, from the relationship of the parties, attempts were made to settle the matter amicably, and so the delay is accounted for. Now that it is enforced, there is no objection to it in law or otherwise, and therefore no occasion to consider whether, in other circumstances, the complainer might have been allowed to suspend on juratory caution.

The other Judges concurred.