Colquhoun v Mackenzie

JurisdictionScotland
CourtCourt of Session
Judgment Date03 November 1894
Date03 November 1894
Docket NumberNo. 9.
Court of Session
2d Division

Lord Justice-Clerk, Lord Young, Lord Rutherfurd Clark, Lord Trayner.

No. 9.
Colquhoun
and
Mackenzie.

LeaseCrofterInterdictCrofters Holdings Act, 1886 (49 and 50 Vict. c. 29), sec. 16.

A crofter bequeathed his right to his holding to M, his mother's sister's son, who entered into occupation of the croft. The landlord having refused to accept him as legatee, M presented a petition to the Sheriff for declarator that he was crofter in the holding. The Court having decided that M was not a legatee in the sense of the Crofters Holdings Act, 1886, the landlord applied for interdict against M continuing in possession. M pleaded that interdict was incompetent, as he had been up to the time of the decision in lawful possession of the croft under sec. 16, subsec. f, of the Act. Held that as he had never been entitled to the character of legatee he had never been in possession of the holding, and that interdict was competent.

(Ante, vol. xxi. p. 427.)

Duncan M'Innes, a crofter on the estate of Donald Cameron, of Lochiel, died on 9th May 1892, leaving a general disposition and settlement, whereby he bequeathed, inter alia, the right to his holding to John Mackenzie, a son of the testator's mother's sister.

Mackenzie intimated the bequest to Mr Cameron, who, on 26th May 1892, objected to receive him as crofter in the holding, on the ground that he was not a member of the deceased's family within the meaning of section 16 of the Crofters Holdings (Scotland) Act, 1886,* and upon the

same date he let the croft to David Colquhoun. Mackenzie reaped the crop of the year 1892, and received the wintering rent of the holding. In March 1893 he attempted to break up the land.

In April 1893 Colquhoun and Mr Cameron raised the present action against Mackenzie, to have the defender interdicted from taking possession of or attempting to take possession of, or interfering in any way with the croft and from cropping or attempting to crop the same.

In July 1893 Mackenzie presented a petition in the Sheriff Court at Fort-William, against Mr Cameron, in terms of the Crofters Act, praying for declarator that he was crofter in the holding.

In the interdict process, on 23d October 1893, the Sheriff-substitute (Baillie) pronounced this interlocutor:Finds in law (1) that the defender is not a member of the same family as the testator within the meaning of section 16 of the Crofters Act, 49 and 50 Vict. cap. 29; (2) that the said bequest is, quoad the right to the...

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