Scottish Court of Session Decisions

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Cite as: [1870] SLR 7_659, [1870] ScotLR 7_659

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SCOTTISH_SLR_Court_of_Session

Page: 659↓

Court of Session Inner House First Division.

Thursday, June 16 1870.

7 SLR 659

Keith

v.

Reid.

Subject_1Lease — Shop — Auction — Express Prohibition — Inversion of Possession.
Facts:

Held (reversing judgment of Court of Session) that where an lease of any shop has been granted without a express prohibition against sales by auction being held on the premises, it is not an inversion of possession, and consequently not illegal, to carry on such sales without the consent of the proprietor.

Headnote:

This was an appeal from a judgment of the Second Division. The case originally came before the Court of Session on an advocation from the Sheriff-court of Aberdeenshire, of a process of interdict brought in that court by the advocator against the respondent. The advocator was proprietrix of a shop in Union Street, Aberdeen, which was let up to the 1st June 1863 to William Fraser, merchant in Aberdeen, as a wine and grocery shop, under a lease which excluded assignees and sub-tenants, but contained no special conditions with reference to the business to be carried on in the premises. In October 1862 the respondent applied to the advocator for a lease of this shop as Fraser's successor, and obtained a lease for five years from the date of the expiry of Fraser's possession and the lease so granted contained an express prohibition against the use of tire shop as an auction room. Subsequent to the granting of this lease, the respondent made an arrangement with Fraser by which he obtained immediate entry to the subjects, taking over the remainder of Fraser's lease, and obtaining the verbal consent of the advocator to this arrangement. The question now was, whether, during the period which intervened before the expiry of Fraser's lease, the respondent was entitled to sell goods by auction in the shop in question? It was, on the one hand, maintained by the respondent (appellant) that there was no restriction upon his use of the subjects during the period in question, either at common law or in virtue of any arrangement to that effect. It was, on the other hand, maintained by the advocator (respondent) that the use of the subjects as an auction room was (1) illegal, as an inversion of the use for which the subjects were let to Fraser; and (2) contrary to an express condition alleged to have been made verbally by the advocator in consenting to the sub-setting of the shop by Fraser.

The Sheriff-Substitute granted interim interdict; but, on a record having been made up and proof led, he recalled that interdict and refused the advocator's petition. The Sheriff adhered, and the advocator now brought the present advocation, in which it was agreed to cancel the proof taken in the Inferior Court, and have a new proof before the Lord Ordinary. On advising that proof the Lord Ordinary adhered to the judgment of the Sheriff.

On a reclaiming note the Second Division of the Court held that the use as an auction room of subjects let as an ordinary shop was an inversion of the possession, and was illegal without the consent of the proprietor; that there was no reliable evidence of such consent; and, that being so, it was unnecessary to inquire whether there had been any express prohibition introduced into tire consent given by the landlord to the subset by Fraser.

Mr Keith appealed.

Sir R. Palmer, Q.C., and J. T. Anderson for him

The Lord Advocate and Pearson, Q.C„ in answer

At advising—

Judgment:

The Lord Chancellormade some critical observations upon the lengthy and costly proceedings in the case, which have lasted for seven years. First (he said), here was the petition for interdict presented to the Sheriff, upon which, after some delay, Mr Keith's estates were sequestrated. The Sheriff found that there was no proof of a prohibition against sales by auction in the said shop. This judgment was then brought under the review of the principal Sheriff, who affirmed it. Then there was an advocation to the Court of Session by Miss Reid, and more time spent in a variety of proceedings before both the Inner and the Outer House. Then a new proof was led, and a judgment pronounced on it by the Lord Ordinary, who found that there was no implied prohibition against sales by auction, and that Margaret Reid had failed to prove that she had imposed any such condition upon the appellant when she gave her consent to the lease, and decided the case in favour of Mr Keith. This was reclaimed by Miss Reid to the Second Division, who reversed on the point of law, holding that the use of the premises for sales by auction was an inversion of the proper use of the premises, and, therefore, that Miss Reid was en-titled to interdict, and now the case has come before this House on an appeal against that judgment. He (the Lord Chancellor) could find no evidence of a prohibition of sales by auction, and the fact that, when it was first proposed, Miss Reid's agent did not refer Mr Keith to any agreement binding him in the matter, goes far to prove that there was none such. In the absence, therefore, of this, he held it to be law that, without an express prohibition, there was a right existing on the part of Mr Keith to hold this sale, and he therefore advised the House to reverse, with costs.

Lord Chelmsfordalso lamented the length of the litigation, considering that the matter was so

Page: 660↓

simple; In England, in such a case, if there was to be any objection as to such sales, it would form the subject of special covenant, and he doubted the law as laid down by the Court of Session judges in Scotland. The question on the proof was as to whether Miss Reid was bound to prove she had given a consent to Mr Keith's lease on the condition that he was not to sell by auction; and, on a review of the proof, he must hold she had not proved such a conditional assent; that, therefore, Keith was free to hold such a sale, and that, therefore, the judgment must be reversed.

Lord Westburysaid the question was, did the word “shop” in law mean a place for private sales only? Nothing, he thought, could warrant such an interpretation. No doubt a dwelling-house could not be made into a beer-house or a factory, and there were other such cases, but here it could not be said there was any such inversion of the proper use. His Lordship made a violent attack upon the Scotch system of legal procedure. It afforded an opportunity to legal advisers to drag their clients through a disgraceful amount of litigation.

Lord Colonsay concurred. He thought the interpretation sought to he put on the lease by Miss Reid pressed too hard on the tenant.

Appeal dismissed, with costs.

Counsel:

Agent for Appellant— William Officer, S.S.C.

Agents for Respondent— Hill, Reid & Drummond, W.S., and William Robertson, Westminster.
1870