The Duke of Argyll v. Muir [1909] ScotLR 67 (30 October 1909)

The Duke of Argyll v. Muir [1909] ScotLR 67 (30 October 1909)

The appeal is competent under section 28 because the value of the cause exceeds £50 and leave to appeal was granted; the defence of proprietorship cannot be entertained by exception in an action for rent, as the defender must raise a declarator and reduction to establish title.

Citation
[1909] ScotLR 67
Parties
Pursuer/appellant: The Duke of Argyll; Defender/respondent: Esdaile Campbell Muir of Inistrynich
Jurisdiction
Scotland
Judgment Date
30 October 1909
Procedural Posture
Appeal / Judgment on Competency of Appeal and Substantive Interlocutor
Outcome
Appeal sustained; interlocutors recalled; process sisted.
Legal Topics
Competency of Appeal, Summary Cause, Lease Validity, Reduction and Declarator, Sheriff Courts (scotland) Act 1907
Civil Procedure Landlord and Tenant Property Law Competency of Appeal Summary Cause Lease Validity Reduction and Declarator Sheriff Courts (scotland) Act 1907

Case Brief

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Parties

The Duke of Argyll

Pursuer/appellant

Esdaile Campbell Muir of Inistrynich

Defender/respondent

Procedural Posture

Appeal / Judgment on Competency of Appeal and Substantive Interlocutor

Legal Issues

  1. 1 Is the appeal to the Court of Session competent under the Sheriff Courts (Scotland) Act 1907?
  2. 2 Can the defence of proprietorship be entertained by way of exception in an action for rent?
  3. 3 Does Rule 50 of the First Schedule permit challenge of the lease without a separate action of reduction and declarator?

Ratio Decidendi

The appeal is competent under section 28 because the value of the cause exceeds £50 and leave to appeal was granted; the defence of proprietorship cannot be entertained by exception in an action for rent, as the defender must raise a declarator and reduction to establish title.

Court Disposition

Appeal sustained; interlocutors recalled; process sisted.

Orders

  • Process sisted to allow defender to raise declarator and reduction within three weeks.
  • Appellant found entitled to expenses of the appeal.