Scottish Court of Session Decisions

We have had the question of relevancy argued to some extent. I do not think it has been fully argued, at least not sufficiently argued to enable the Court to give a final judgment upon it, and I think the question is capable of further argument. I am of opinion that the facts as to the sub-letting of the house and the rent derived therefrom may have a material bearing upon the answer to the question presented to us in the Case. Therefore, if it be competent, I am of opinion that a remit should be made to the Land Court to take evidence on this subject, and to state the facts which the Land Court hold proved upon the evidence adduced on both sides, and that a statement of fact to that effect should be inserted in the Case. It is quite plain that if we allow further evidence we are not the Judges as to what that evidence may establish, that being a duty entirely left to the Land Court. After the Land Court have found the facts which they think proved the case will then be ready for further discussion and consideration upon its merits.

On the question of the competency of this remit I entertain no doubt. By the statute an appeal is allowed only upon points of law, but if an appellant desires to raise a point of law and is not allowed to do so, and if the point of law is a proper subject of appeal, it is quite plain in my judgment that the point should not be excluded from the questions of law submitted to us, and as the facts relating to the point of law may be material to the determination of the question we ought to have before us these facts as found proved by the Land Court. We cannot, however, accept the proposals which are made in Mr Watson's minute, and I suggest to your Lordships that the proper interlocutor would be to find that the evidence rejected should have been allowed, and to remit to the Land Court to take evidence as to the subletting of the house and the rents derived from such subletting, and to state what are the facts which the Land Court hold proved by such evidence.

Lord Dundas—I concur.

Lord Salvesen—I agree with your Lordship on all points. The question of competency is, I think, foreclosed by decision. If the Land Court has finally to decide what questions of law are to be submitted to this Court it is obvious that the Land Court might evade the duty of stating the question of law which the appellant desires to raise. No doubt the adjustment of the Case is left in the hands of the Land Court, but they must state the Case with reference to the question of law which the appellant desires to bring under the notice of the court of review.

With regard to the exclusion of the evidence in question, we are not at this moment deciding whether the decision of the Land Court may not have been right. All that we are deciding is that the evidence should have been allowed in order that the question of law which the appellant desired to raise might be duly put before the Court. He may be wrong upon that question after the facts are ascertained, but I must say that I cannot hold that the Land Court were entitled to say ab ante that however the questions as to the letting of the house were answered, and however much the appellant derived by way of rent from the letting of his house, these facts could have no bearing upon his application. It may be that if Mr Christie is well founded in his ultimate contention that the applicant only comes under the provisions of the Crofters Act in so far as these have been embodied in the Small Landholders Act, then subletting for some purposes during the summer months may not constitute a contravention of the Crofters Act. But until we have ascertained the fact whether there was subletting there can be no question upon which the Court can pronounce an opinion.

I agree with your Lordship that we ought to remit the case for further evidence. It would be futile to give effect to the literal crave of the minuter, because that would only result in the case coming back here again, and the course which your Lordship suggests seems to me to be the only practical course in the circumstances. Let us get this evidence, and then the appellant will be able to raise the question of law on which he desires our decision.

Lord Guthrie—I agree. Mr Christie scarcely disputed that if the Chairman of the Land Court (Lord Kennedy) refused to allow any questions to be put in reference to the letting of the house he was not justified in so refusing. He put it that the refusal merely applied to the amount which was got from the letting of the house. I think it is quite plain, looking to the view of the law which the Chairman then held, that he would have disallowed any question as to the letting of the house.

Mr Christie's only plausible point was that the appellant acquiesced in the course taken by the Chairman, and that he had abandoned his case under that head. I cannot so read the averments, and I think there is no course open to us except that which your Lordship has proposed.

The Court found that the evidence rejected by the Land Court should have been allowed, and remitted to the Land Court to take evidence as to the subletting of the house occupied by the applicant from 1896 to 1912, and the rents derived from such subletting, and to state what were the facts which the Land Court held proved by such evidence.