Scottish Court of Session Decisions

Andrew Brown, the respondent, was proprietor of certain heritable subjects at Wester Mugdock, Milngavie, which by lease, dated 3d March 1859, were let to James Weir for nineteen years from Martinmas 1859. The said lease contained a clause entitling either party to terminate the lease at the end of the first ten years, or at Martinmas 1869, upon three months' notice. James Weir was succeeded by his son John Weir in 1865, who remained in possession of the subjects let, though it was maintained by the landlord that he had taken advantage of the break at the end of the ten years, and that the tenant was now possessing under a new lease granted at Martinmas 1869. The lease excluded sub-tenants and assignees.

In 1866 James Logan, the complainer, became a sub-tenant of Weir's, in a small house and garden, &c., upon the farm. He continued to occupy these subjects as a yearly tenant till 1867, when, upon executing certain repairs, he obtained a missive of lease of them from Weir for the remainder of his (Weir's) lease of the farm. In entering into this agreement the complainer was not made aware of the break in Weir's lease, and believed it had still eleven years to run.

Thereafter, at Whitsunday 1869, Weir attempted to remove the complainer from his tenancy, but after various procedure in the Sheriff-court and Court of Session, he entirely failed.

On 4th April 1871 the complainer was served with a notice by a messenger-at-arms, at the instance of the respondent, warning him to remove at Whitsunday 1871. The said warning was alleged by the complainer not to have proceeded upon a precept of warning by the proprietor, and wanted all the other requisites of a warning either under the Act of 1555, or under the Sheriff Court Act of 1853. The complainer therefore brought this suspension and interdict to have the respondent prohibited from ejecting him without the warrant, of a competent court of law.

The Lord Ordinary on the Bills ( Mackenzie) pronounced the following interlocutor:—

“ Edinburgh, 25 th May 1871.—The Lord Ordinary having heard the counsel for the parties, and considered the note of suspension and interdict and answers,—on juratory caution, passes the note and continues the interdict, and grants commission to the Judge Ordinary of the bounds to take the complainer's oath anent juratory caution, and to report.

Note.—The Lord Ordinary is of opinion that the complainer is entitled to have the note passed, and the interim interdict continued, prohibiting the respondent from ejecting him, without the warrant and authority of a competent court of law, from the subjects which he claims right to possess, as the sub-tenant of John Weir, until Martinmas 1878. Even although the principal lease had been terminated at Martinmas 1869 by the respondent availing himself of the break therein contained, and although the principal tenant had removed at that term, the respondent cannot, it is thought, eject the complainer, except upon the decree of a competent court. The provisions of the 31st section of the Sheriff Court Act of 1853, which were alone founded on by the respondent, do not appear to authorise such ejection by the respondent, because more than six weeks have elapsed since the expiration of the term of endurance. The letter of removal, also, is not in the form contained in schedule K annexed to the Act. Further, the complainer avers that the respondent and John

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Weir did not avail themselves of the break in John Weir's lease; that the lease subsists until Martinmas 1878; and that John Weir has all along been, and still is, in possession of the subjects as principal tenant, and has right to continue that possession down to that term.”

Against this interlocutor the respondent reclaimed.

Asher and M'Kechnie for him.

Mair and Rhind for the complainer.

At advising—