Scottish Court of Session Decisions

Page: 85↓

In December 1861 a lease of a shop in Nelson Street had been granted by the late Mrs Hatton to the defender John Clay, who is an ironmonger, for seven years, from Whitsunday 1862. This lease contained a clause excluding assignees and sub-tenants. On 3d September 1863, Mrs Hatton, with concurrence of her husband, raised an action of removing against the defenders. The grounds of the action are set forth in the 11th and 12th articles of the pursuer's condescendence as follows:—“On or about 6th June 1863 the remainder of the stock of ironmongery goods in the shop in Nelson Street was removed by Clay to another ironmongery shop occupied by him in Pitt Street; and about the same time the furniture belonging to Miss M'Luckie was brought into the shop and room adjoining the same, and the window of the shop, which had been previously stocked with ironmongery goods, was filled with gloves, ribbons, and other articles connected with her calling, which is that of a cleaner of gloves and ribbons. From the time she took possession of said shop, early in June, down to the execution of the summons in the present action, a period of more than three months, the shop was in the entire and sole possession of Miss M'Luckie.” The summons concluded in the following manner:—“And our said Lords ought and should farther decern and ordain the said Jane M'Luckie, as assignee to said lease, or as tenant and sub-tenant in said subjects, holding and possessing the same under the authority of the said John Clay, in whatever manner she may pretend to do so, to cease from occupying the said subjects, and to flit and remove,” &c.

It was maintained by the defenders that the action is irrelevant, because the conclusions are applicable only to a sub-lease, or an assignation to a lease, whereas it is nowhere averred in the condescendence that Clay had either sublet the premises to Miss M'Luckie or had granted to her an assignation to his lease. Lord Ormidale, of consent of both parties, granted a proof before answer. A voluminous proof having been led, his Lordship found for the pursuer, holding that the arrangement between the defenders, and their acts consequent thereon, amounted to a cession by the defender Clay of the shop and premises to the defender M'Luckie, and were adopted by them as a collusive device to defeat the conditions of the lease excluding sub-tenants and assignees.

The defenders having reclaimed, the Court held that the summons concluded that Miss M'Luckie should be decerned to remove, not only as assignee or sub-tenant, but also “in whatever manner she may pretend to possess the premises under the authority of the said John Clay;” that such a conclusion applied not only to an assignation of the lease or to a sublease, but to any form of possession which Miss M'Luckie may have held of the premises; that though nothing was said in the condescendence about Clay having sub-let the premises or granted an assignation to the principal lease, yet it was averred that Clay had left the premises with his goods and that Miss M'Luckie had come in with hers; and that the summons was therefore relevant. The Court then appointed parties to be heard on the proof, but before the debate had proceeded further the defenders consented to the Lord Ordinary's interlocutor being adhered to on the pursuer agreeing to accept a sum of £20 in name of expenses.