Scottish Court of Session Decisions

William Mitchell held an agricultural lease, dated in 1868, of the lands of Pulrossie and others from Mr Sutherland of Skibo. The lease contained a clause reserving to the proprietor the whole game upon the lands, hares and rabbits included, and also the whole fishings in the waters passing through or bounding the lands thereby let, with the sole and full right to the proprietor, either by himself or others to whom he might give authority so to do, to hunt, shoot, and course on the lands thereby let, and to fish in or upon the waters, with the right of using the banks along the same for that purpose, and that without paying to the said William Mitchell or his foresaids any damage therefor. And it was thereby agreed that the said William Mitchell or his foresaids should not have any claim against the proprietor for any damage which might be done to his crops, either by game, hares or rabbits, the proprietor, however, keeping down the rabbits to the best of his ability to a fair and reasonable stock.

In 1885 Mitchell brought an action against Mr Sutherland in the Sheriff Court of Ross, Cromarty, and Sutherland at Dornoch for £433 in name of damages. He alleged that during 1884 and 1885 the stock of rabbits on the said lands had been increased by the defender, or suffered to exist to an unfair and unreasonable extent, and that he had in consequence sustained damage to the extent of the said sum sued for.

The defender pleaded—“(2) The defender should be assoilzied in respect the claim is excluded by the lease, and in respect the defender has not failed in the performance of any obligation incumbent on him. (3) The stock of rabbits during the period complained of not having been more than fair and reasonable, and separatim, the defender having kept them down to the best of his ablility to a fair and reasonable stock, he should be assoilzied,”

The Sheriff-Substitute ( Mackenzie) pronounced this interlocutor—“The Sheriff-Substitute having heard parties' procurators, reserves consideration hoc statu of the defender's plea that the present demand for damages is excluded by the lease between the parties, and before answer allows the pursuer a proof of his averments (so far as denied or not admitted), and the defender a conjunct probation, and directs that the case be put to the roll of the 3d November next, to have a diet of proof fixed.

“ Note.—The foundation of the pursuer's claim is that he has suffered damages from rabbits, which the defender has allowed to increase beyond what was ever contemplated by the lease. He is thus entitled to an opportunity of showing that the restrictive clause in that lease (upon which the defender founds his plea) is inapplicable to the actual state of matters about which he complains, and a proof before answer has accordingly been allowed him.”

The defender appealed to the Court of Session for jury trial, and the pursuer accordingly lodged a proposed issue in the following terms:—“It being admitted that between 1st January 1884 and 1st July 1885 the pursuer was the defender's tenant, under lease dated 27th April and 5th May 1868, in All and Whole the lands and mains of Pulrossie, and the lands of Newton and Balnoe, and Polnahard, all lying in the parish of Creish and shire of Sutherland, together with the pasturage of the woods of Newton, Balnoe, and Sheneval, but excepting and reserving from the said lands the portions described in the said lease, and that the pursuer had right to the crops and pasture on the lands let to him by said lease between the two dates above mentioned—Whether during the whole or any part of said period the defender wrongfully kept or suffered to exist on the lands let to the pursuer, or any part thereof, rabbits in excess of a fair and reasonable stock, to the loss, injury, and damage of the pursuer?”

On the case being called in the summar roll, the defender (appellant) moved to have the case tried before a Judge in the Court of Session, on the ground that a difficult question of construction of the lease was involved— Cadzow v. Lockhart, 2 R. 928, 3 R. 666.

The pursuer argued—This was plainly not a bona fide appeal for jury trial, but an attempt by a landlord to increase expense and litigation by having the case conducted in the Court of Session, and rendering an appeal to the House of Lords possible. Such a course of procedure,

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though competent—see Cochrane v. Ewing, July 20, 1883, 10 R. 1279—would not be encouraged by the Court. It would defeat the leading provision of the enactment— Dennistoun v. Rainey, Knox, & Company, 9 Macph. 739. The case having been brought here by the defender should be tried by jury. It was not in its nature unfitted for a jury. The clause in the lease was not at all so intricate and difficult as that in Cadzow's case. The proposed issue raised the whole point— Sime v. Earl of Moray, 6 Macph. 217. Alternatively, if the case were not to be tried by jury it should go back to the Sheriff Court.