Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Midlothian in an action at the instance of Andrew Robertson against John Cockburn. The summons concluded that “the defender ought to be decerned and ordained forthwith to implement and fulfil the contract or agreement entered into between him and the pursuer, on or about the 5th day of October 1874, for a lease of the shop No. 64 Grove Street, Edinburgh, for five years, at the rent of £45 for the first three, and £50 for the remaining two years, conform to draft of such lease prepared by the agents of the said pursuer, and revised by the said defender.” Then followed the usual conclusion for damages in the event of the defender failing to implement. The defender, in his minute of defence, denied that any lease had been entered into between him and the pursuer, although he admitted that negotiations for a lease had been gone into. He further pleaded locus penitentiæ, in respect that there was no written agreement or lease. The plea of no jurisdiction was not however raised by him.

The Sheriff-Substitute ( Hallard) pronounced the following interlocutor:— “Finds that this action is in substance one to have it found and declared that the defender is bound to accept from the pursuer a lease for five years, at the rent of £45 for the first three, and £50 for the remaining two years: Finds that it is ultra vires of this Court to pronounce a judgment to the above effect: Therefore dismisses the action; finds the defender entitled to expenses, &c.

Note.— The Sheriff-Substitute has read the authorities to which he has been referred by the pursuer's agent. These bring out pretty clearly that a declaratory conclusion and decree are necessary to give the pursuer the remedy he seeks. This Court is not competent to give that remedy. Moreover, the proposed deed is intended to give a leasehold title to an heritable subject; and the conclusion for damages is subordinate to the leading conclusion, which, as already said, is in substance and effect a declaratory one. See Robertson v. Lindsay, Dec. 4, 1873.”

The pursuer reclaimed to the Sheriff, ( Davidson) who upon 12 April 1875 issued an interlocutor dismissing the appeal. The following note was appended to the Sheriff's judgment.

“ Note.—The case of Gordon in 1802 (p.12,245) to which the respondent has referred, and also another case of recent date, Cox and Others v. Kerr, Oct. 25, 1873, which followed the case of Gordon, were not, at least apparently, quite the same as this. In both these cases there were disputes as to the terms of the dispositions, which in each case the petitioner asked that the respondent should be ordained to deliver to him. Thus, questions of heritable right were clearly involved in these cases.

But here, supposing the alleged agreement for a contract of lease were to be proved by the petitioner, the exact terms and conditions of the lease to which the petitioner is entitled would or might be subject of discussion, and equally raise such incompetent questions. The petitioner of course means that if he proved his agreement for a lease, the Sheriff should read the written lease to be executed in respect of the agreement, and decide all questions that might arise thereanent. Therefore, though with hesitation, the Sheriff concurs in holding this action incompetent.

The respondent did not plead incompetency. The Court was, however, ex proprio motu entitled to consider that; and it is not thought there should be any modification of expenses inasmuch as the progress of the case has been at once arrested, and no additional expenses caused by the respondent's act.”

The pursuer appealed.

Argued for him— The Sheriffs are wrong in holding that this action is in substance one of declarator, or that it involves questions having reference to the title to an heritable subject. It is not even an action to compel a party to grant a lease, but simply to obtain the fulfilment of a bargain which has been entered into. If the defence had struck at the pursuer's title to give the lease it might have been different, but here there is simply a question of fact, with which the Sheriffs can competently deal.

Argued for respondent— This action has for its object the constitution of an heritable right. There is no executed lease, and what the Sheriff has been asked to do is practically to adjust a lease. An action competent in itself when brought in the Sheriff-court, may be rendered incompetent from the nature of the defence. The constitution of the lease is here denied, and this renders it incompetent for the Sheriff to deal with the action.

Authorities cited— Hall v. Grant, May 19,1831, 9 Shaw 612; Corbet v. Douglas and Jarvie, March 5, 1808, Hume 346; Robertson v. Paton, May 23, 1815, Hume 658; Murdoch v. Wyllie, March 8, 1832, 10 S. 445; Gordon, February 6, 1802, M. 12,245; Earl of Aberdeen v. Laird, February 7, 1822, 1 Shaw 294; Earl of Moray v. Pearson, June 11, 1842, 4 D. 1414; Harley Maxwell v. Glasgow and South Western Railway Company, February 16, 1866, 4 Macp. 447; M'Laren's Trustees v. Kerr, October 25, 1873, 1 Rettie 60; Robertson's Trustees v. Lindsay, December 20,1873, 1 Rettie 323.

At the debate it was pointed out by the Bench that the summons was defective, inasmuch as it failed to show how the lease was to be implemented. Accordingly, with the approval of the Court, a minute was lodged amending the summons by setting forth that the lease was to be implemented by the defender “entering into possession of the premises and paying the rent when due.”

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