Scottish Court of Session Decisions

The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) enacts—Section 25 (2)—“For the purposes of the Landholders Acts the Land Court shall have full power and jurisdiction to hear and determine all matters whether of law or fact, and no other court shall review the orders or determinations of the Land Court: Provided that the Land Court may, if they think fit, and shall, on the request of any party, state a special case on any question of law arising in any proceedings pending before them for the opinion of either Division of the Court of Session, who are hereby authorised finally to determine the same.”

The Rules of the Scottish Land Court, dated 15th November 1912, provide—Rule 102—“Any party to an application or other proceeding who intends to require that a special case shall be stated on any question or questions of law for the opinion of either Division of the Court of Session, shall, within fifteen days after the date of the receipt by the sheriff-clerk of the decision complained of, lodge with the Principal Clerk at the Edinburgh office of the Court a requisition to that effect, and also a draft statement of the case specifying ( a) the facts out of which such question or questions of law are alleged to have arisen, ( b) the decision complained of, ( c) in what respect and to what extent such decision is maintained to be erroneous in point of law, and ( d) the question or questions of law proposed to be submitted to the Court of Session.” Rule 105—“On the said special case being authenticated … the Principal Clerk shall transmit the same with relative productions, if any, which have been made part of the case to the Clerk of the Division of the Court of Session to which it is stated, and shall notify such transmission to the parties thereto.”

Sir Archibald Spencer Lindsey Campbell, Bart., appellant, being dissatisfied with an order of the Scottish Land Court in an application by Andrew Sinclair, respondent, craving the Court to find and declare that the respondent was and had been a landholder from 1st April 1912 as an existing crofter or otherwise as a yearly tenant in a holding of which the appellant was proprietor, requested the Land Court to state a Special Case.

The draft Case as prepared by the appellant and lodged with the Land Court was marked to the Second Division. The Land Court altered the marking to the First Division and issued the Case so marked to the parties.

The Case came out in the Single Bills, when counsel for the appellant moved that the Case should be transferred to the Second Division.

Argued for the appellant—The ordinary rule in appeals from the Sheriff Court was that the appellant had the right to mark the appeal to whichever Division he chose. A pursuer in the Outer House had the same right. There was nothing either in the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) or in the Rules of the Land Court to show that the ordinary rule was not to apply to a special case. The appellant had marked the Case to the Second Division, to which it should now be transferred. The Act of 1911, section 25 (2), and the Rules of the Scottish Land Court, rule 102, were referred to.

Argued for the respondent—The obligation to state a case upon request by one of the parties was laid upon the Land Court—section 25 (2) of the Act of 1911—but the party's only right as to the preparation of the case was to submit a draft case by the Land Court containing certain particulars which did not include marking to a Division. The right to choose the Division was reserved to the Land Court—Rule 102. [The Lord President referred to Rule 105.]

The Court intimated that they would consult with the Judges of the Second Division.

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