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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Suspension - Slowey v. Robertson [1865] ScotLR 1_14 (2 November 1865)
URL: http://www.bailii.org/scot/cases/ScotCS/1865/01SLR0014.html
Cite as: [1865] SLR 1_14, [1865] ScotLR 1_14
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SCOTTISH_SLR_Court_of_Session
Page: 14↓
Court of Session Inner House Second Division.
v.
This is a suspension of a summary warrant of ejectment pronounced by the Sheriff-Substitute of Stirlingshire, ordaining the suspender to remove from certain premises in the village of Alva belonging to the respondent, to which it appears that the suspender had acquired right by a verbal lease. The point on which the case turned was that the notice to remove was given to the wife, and it was pleaded for the suspender that the praepositura of the wife did not entitle her to receive such warning so as thereby to bind the husband. But it appeared in evidence that the premises had been originally taken by the suspender's wife, and that under that contract of location he had possessed the subjects along with his wife.
The Lord Ordinary (Mackenzie) held that “as the suspender's wife was the person who took the house and paid the rent, verbal warning to her was enough in her husband's absence, his occupation being that of a hawker.”
To-day the Court adhered.
The Lord Justice-Clerk observed that the judgment to be pronounced did not in any way affect the authority of the case of Lambert v. Smith, relied upon by the suspender. There it was decided that the praepositura of the wife did not entitle her to receive such a warning, just as it did not entitle her to enter into the original contract of location, so as to bind the husband. But in the present case it must be held that the facts disclosed authority to the wife to perform such acts, and the husband could not at one and the same time avow what the wife had done, so as to get the benefit of the contract of location, and disavow the warning that had been made to her, so as to get rid of its consequences.
Counsel for the Suspender— Mr Shand and Mr Guthrie. Agent— Mr John Murray, S.S.C.
Counsel for the Respondent— Mr Patton. Agent— Mr John Patten, W.S.