Scottish Court of Session Decisions

The Lord Justice-Clerk said the Lord Ordinary had passed the note as the case raised points requiring more deliberation than they could receive in the bill; and probably if he had been in the position of the Lord Ordinary he would have done the same. But when the case came before the Court it was obvious that it was of such a nature as to require disposal at once, and accordingly they had had a full argument. The petitioner in the action of removing sets himself out as being the heritable proprietor of a dwelling house, &c., at Ferniegare. That is his title, and in support of it he produces a disposition which is registered, and therefore equivalent to disposition and infeftment. It further appears that he acquired the subjects as purchaser from the Commercial Bank. The petitioner further sets out that the subjects are occupied by the respondents as tenants under him, and that he has from time to time summoned them to remove, and he produces a percept and execution of warning in support of that. There is no doubt that the warning was timeously given. Upon these grounds he prays for summary ejectment of the respondents. Now, ex facie, in that petition the proceedings are perfectly regular, and I may just say, in passing, that there is no irregularity or impropriety in a petitioner seeking such a summary remedy, setting out that the respondents are either tenants or pretended tenants, because it may turn out that the title to tenancy is liable to objection, and I cannot think that merely because the title to tenancy is liable to objection the respondents could object to the petition. But all depends on the nature of the defence. If the defender had alleged in answer to the petition that he was proprietor, and thereby had a title to compete with him, the proceedings could not have proceeded before the Inferior Court. But that is not his defence. His defence is (r) that the summary remedy asked is incompetent, because the parties do not stand towards one another as lessor and lessee. That is a complete admission that he has not a good title of tenancy, and is therefore not a good answer to the petition. I can well enough understand the petitioner bringing a summons of removing, and not knowing very well whether the respondents had a good right of tenancy; but it would have been rash for him to proceed without warning. But after the defender said that he was not tenant, I hold his mouth shut as to the remaining objections, for they are all about the warning. No doubt there is, in a certain sense, another defence, to the effect that the pursuer has no title. It is said that Nisbet was proprietor of the subjects; but that is no allegation of property; and there is no production of any title by the defender. It appears to me, therefore, that in that state of matters the Sheriff-Substitute could do nothing else but grant decree of removing. His Lordship then adverted to the case of Waterstone v. Mason, June 30, 1848 ( 8 D. 944), which had been pleaded in argument as being counter to the judgment of the Sheriff-Substitute, and said that in that case the petitioner in the inferior Court libelled a missive of lease, and the allegation was that the defender possessed on that. The question raised on the merits was a competition of heritable rights, and the points decided were (1) that the petitioner, having taken his stand expressly on a missive of lease, he could not turn round and say that the respondent was not a tenant but a vitious possessor; and (2) that there was a competition of heritable rights in the inferior Court which the Sheriff could not decide. There was no such question here. It is a removing against a party who either was or might be supposed to be tenant, and who, when he admits that he is not tenant, admits enough to ground decree of removal. His Lordship continued—I do not think it necessary to fix any general principle beyond this, that a petition framed in the manner in which this is may competently proceed in the inferior Court, whether the defender has a good title of tenancy or not. The plea of lis alibi pendens, though stated in the inferior Court, not being insisted on in the note of suspension, requires no consideration.