Scottish Court of Session Decisions

Sir William Montgomery Cuninghame of Corse-hill, Baronet, and others, trustees of the late Sir James Boswell, Baronet, of Auchinleck, in the county of Ayr, presented the present petition and complaint for breach of interdict against John Pearson, farmer, sometime tenant of the farm of Mosshouse, part of the said estate of Auchinleck, in the following circumstances:—

The petitioners, as trustees, were proprietors of the estate of Auchinleck, and Mr James Howden, C. A., Edinburgh (also one of the petitioners) was factor and commissioner for the said trustees, with full power to output and input tenants.

In his capacity of commissioner Mr Howden

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let the farm of Mosshouse to the said John Pearson on a nineteen years' lease from Martinmas 1881, at an annual rental of £53.

Pearson failed to pay the full rent due at Whitsunday 1885, and the half-year's rent due at Martinmas following, and an action of removing was raised against him in the Sheriff Court of Ayr, in which decree in absence was pronounced on 4th February 1886, ordaining him to quit the farm, lands, and pertinents of Mosshouse at Whitsunday 1886, under pain of ejection. A charge followed on this decree on 25th February 1886, and on 10th April thereafter, Mr Howden, as factor foresaid, let the farm to James Harper, with entry at Whitsunday 1886. Pearson refused to remove from the farm at Whitsunday 1886, and on the 26th May lodged a reponing note and defences in the action of removing. The note, which operated as a sist of diligence, was refused by the Sheriff-Substitute, and on appeal by the Sheriff.

Pearson still refused to leave the farm, and on 19th July he was formally ejected by a sheriff-officer, but after the departure of the officer he immediately resumed occupation of the premises. When the new tenant, Harper, endeavoured to obtain entry, Pearson threatened him and his servants with bodily violence, and prevented him from obtaining possession of the farm, and thereafter continued grazing, cropping, and making hay thereon. On 17th August following a note of suspension and interdict was presented to the Lord Ordinary on the Bills by the present petitioners, praying the Court to interdict respondent from continuing the possession of the said farm of Mosshouse, and from preventing the said James Harper from peaceably enjoying the same. The respondent lodged answers. On 3d September following the Lord Ordinary on the Bills (Lord Lee) having heard counsel for the petitioner and an agent for the respondent, passed the note on caution, and, under certain reservations and undertakings by the complainers, granted interim interdict.

Not with standing the interdict, Pearson continued to retain possession of the farm. The present application was accordingly made by the petitioners, the concurrence of the Lord Advocate having been obtained thereto. Harper was also a consenting party to the proceedings.

On 16th October the respondent was ordained to lodge answers in eight days.

The induciæ having expired, and no answers having been lodged, the case was re-enrolled, and on Saturday 30th October an order was pronounced by the Court ordaining the respondent to attend personally at the bar on Thursday the 4th November. On the motion of petitioners' counsel the Court appointed this order to be intimated to the respondent by registered letter. The respondent appeared at the bar on 4th November, and stated that he was guilty of the breach of interdict, but being unable to state any explanation of his conduct, the Court continued the case until the following day in order to enable him to obtain the assistance of counsel.

On Friday November 5th the respondent having again attended at the bar, counsel for him confessed the breach of interdict and made an explanation in answer, to which the Court heard a statement by counsel for the petitioners.