It is sufficient for the tenant of a house in Edinburgh to intimate to the landlord his intention of removing forty days before Whitsunday. See No 104. p. 13862.
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Mrs Pitcairn had for many years possessed a house in the Canongate of Edinburgh, belonging to Alexander Jack, for which she paid rent at Whit sunday and Martinmas.
She died on the 23d February 1794; and next day the agent for the Earl of kellie, her Representative, intimated to the landlord his intention of giving up possession of the house at the ensuing Whitsunday. Alexander Jack insisted, that as warning of an intention to remove had not been given at Candlemas, the Earl was liable for the rent of the next year; and a bill of suspension, presented by his Lordship, having been refused, he, in a reclaiming petition,
Pleaded; It is a settled point, that a landlord within burgh may remove his tenant upon giving him warning 40 days before the term of removal; Stair, B. 2. Tit. 9. § 40.; Bankton, vol. 2. p. 109. § 52.; Erskine, B. 2. Tit. 6 § 47. By the same rule, it must be competent to the tenant to leave the possession upon giving the like notice to the proprietor. It is indeed common for tenants to pay the rent due at Martinmas at the Candlemas following, and for the parties then to settle as to the possession for the ensuing year; but the landlord, in the present case, had no rent to receive at that term, and had no communication with his tenant.
Answered; It is the uniform practice in Edinburgh and its suburbs, for the tenant who means to remove at Whitsunday to give intimation to the landlord at the Candlemas preceding, and for the landlord to give similar warning when he means to resume possession of his property. Accordingly, it is immediately after that term that houses let to most advantage; and it becomes a fair presumption, when no intimation of an intention to change is given on either side, that the contract is renewed for another year. In such cases, therefore, there can be no room for applying the general rule of law with regard to warnings; and least of all in the present case, where, from the tenant's long continuance in possession, the landlord had no reason to presume, and it Cannot be pretended that the tenant had formed, an intention of removing.
The Lords, upon advising the petition, with answers, being of opinion that the notice was sufficient, remitted to the Lord Ordinary to pass the bill of suspension.
Lord Ordinary, Dreghorn.For the Suspender, Rolland.Alt. Forsyth.
Fol. Dic. v. 4. p. 224. Fac Col No 180. p. 427.
