Scottish Court of Session Decisions

After a proof, the Sheriff-Substitute ( Spens) issued the following interlocutor and note:—

“ Hamilton, 21 st February 1871.—Finds this is an action brought by the pursuer against the defender, craving that the latter be ordained (1) to place sufficient furniture, goods, and plenishing within the shop and premises situated at No.15 Glasgow Road, Wishaw, so as at least to equal the current year's rent; (2) to open the said shop and other premises, and carry on business therein; and (3) to keep proper fires lighted therein, so as to air the same, and prevent deterioration from dampness; finds it was stated in defence that said premises were, at the time when the defender should have entered thereto, viz., 7th June 1870, and have since been, uninhabitable and unusable in consequence of their not being in a proper state of repair; finds a proof of this was allowed to the defender before farther answer, and to the pursuer a conjunct probation; finds that under the letter No.5–1 of process, now duly stamped, and relative letters, the pursuer and defender entered into a lease for five years of the premises in question; finds that said premises were thereby let to the defender by the pursuer at a rent of twenty-four pounds, under deduction of seven pounds for the first year from said date of lease up to Whitsunday 1871; finds that anterior to said lease being entered into, the pursuer personally inspected the premises; finds that thereafter he employed tradesmen to alter the premises, so as to suit him for the carrying on of a pawnbroking business; finds that he states, while these operations were going on, and about the end of June, he discovered there were appearance of dampness on the wall of the shop, and the ‘floor was far from level, the bricks crumbled away when touched, and there were hollows here and there throughout the floor’; finds that these operations were extensive, and were made without any direct intimation to pursuer, who was a tenant of Mrs Deans, the landlord of the premises in question, or to Mrs Deans herself; finds that the defender himself states, with reference to the extent of these operations, ‘I took down the partition, and there are now five apartments (from six previously); I made a door in an adjoining brick building of one storey and one apartment, and also a window in the gable of the house itself’; finds that by conducting such extensive alterations at his own hands, the defender implicitly admitted the habitableness of the premises taken, at all events that this is a bar to the plea now urged; finds, further, that damp is not proved to such an extent as to have rendered the premises unusable by the defender for a pawnbroking establishment, or at least that strapping or lining the wall would have rendered them useable; finds that defender obtained a deduction of £7 for the first year, as the pursuer also had from Mrs Deans, on account of the premises not being in a state of full repair; finds that the defender contemplated strapping the wall where the damp existed, and of laying a wooden floor, and that he made a statement to the witness David Mitchell, after noticing the damp on the wall, in his presence, to the following effect—‘It would be cheaper to strap the wall where the damp was, than to line it, and he would do that.’ And, farther, he spoke of lifting the floor, which was of brick, ‘taking out the earth, and laying a wooden floor, and making the shop more lofty,’ to the same witness; finds that the tenement in question is an urban one, and was taken by Lachlan Taylor (with whose consent the action is brought) on behalf of the pursuer, for five years, but that said arrangement was never reduced to writing; finds that although, according to his own statement, defender knew the state of the premises in the month of June, he made application to Mrs Deans (which he seems to have thought necessary), in the end of July or beginning of August, to be accepted as tenant; finds that no complaint as to the state of the premises was ever preferred by the defender to pursuer until the reception by the latter of the letter of which No. 5–4, dated 17th August, is a copy, addressed to Mrs Deans; finds that the key of the premises in question was only returned, or attempted to be returned, on or about the 8th of September 1870; finds therefore, and apart from the findings, that the defender's actings as regards alterations have implied his acquiescence in the habitableness of the premises, that the alleged objection as to premises not being habitable was not timeously made; decerns, therefore, against the defender, in terms of the first craving of the petition, viz., to place sufficient furniture, goods, and plenishing within the said shop and premises as may be equal in value to the current year's rent: Quoad ultra dismisses the petition for the reason in the subjoined note; finds the defender liable in expenses, including the expense of stamping No. 5–1,

Note.—The Sheriff-Substitute has been unable to find any authority for the last two cravings in the prayer of the petition, and has accordingly dismissed the petition as regards them; but as it has caused no expense to the parties, no difference in the finding for expenses has been allowed. It is thought that the above findings sufficiently indicate the grounds of judgment otherwise.”

On appeal, the Sheriff-depute ( Glassford Bell) adhered, with certain slight modifications.

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