Scottish Court of Session Decisions

Alexander Mackintosh of Mackintosh, designing himself merely Captain and Chief of Clan Chattan, raised an action against Mrs Amelia Chisholm or Mackintosh, setting forth that the defender was “indebted to him in the sum of £133, 10s. sterling, being the amount of the rent of the farm of Kincraig, all as occupied and possessed by the said defender herself, or her subtenants, under the pursuer, for crop and year 1833, of which rent one-half became payable at the term of Martinmas 1833, and the other at the term of Whitsunday last, being for said crop and year; as also of the sum of £66, 15s. sterling, being the half year's rent due to the pursuer by the said defender at the term of Martinmas last by past, both in this present year, for crop and year 1834; and although the pursuer has often desired and required,” &c.

Mrs Mackintosh stated in defence, that she was tenant of the pursuer under a regular lease, containing stipulations which would defeat a considerable part of the claim now made, if such lease was founded on, as it ought to have been by the pursuer; and she consigned the sum admitted to be due. But she pleaded, as a preliminary defence, that the libel was inept, as the pursuer had not set forth that he was proprietor of the lands for which he claimed the rent; nor had he stated in what other character than that of landlord he meant to claim it, if there were any other character in which he could do so. Neither had he produced the documents within his power, including the lease, though necessary to support his action.

The pursuer answered, that he had libelled his claim as for a precise sum of rent, due for the defender's occupation of a specific farm, during crop and year 1833, and one half of 1834; and that the defender possessed this farm “under the pursuer;” and though he had not specially libelled that he was proprietor, this was truly the character in which his claim for rent was made, and must be held to be so, when no other was set forth. In regard to the non-production of the documents with the summons, that was according to daily practice; besides, the alleged lease was not founded on by him, but by the defender.

The Lord Ordinary “sustained the preliminary defence pleaded, dismissed the action, and decerned, and found the defender entitled to expenses.”

The pursuer reclaimed, and insisted that he might at least be allowed to amend his summons.