Scottish Court of Session Decisions

This was an appeal in a petition presented in the Sheriff Court of Lanarkshire, at the instance of Colin Dunlop & Co., coal and iron masters, Quarter Iron Works, near Hamilton, against James Meiklem, miller, residing at Newhouse Farm, Hamilton. The petitioners set forth that they were principal tenants of Thinacre Mill, with house, garden, and about 10 acres of land, and that they had let these subjects to Meiklem, the respondent, as subtenant for a year from Martinmas 1874 as to the land, and from Whitsunday 1875 as to the mill, houses, and garden; and that on 30th September 1875 they had intimated verbally to the respondent that the lease would not be renewed, and that the respondent said at that time that he would remove at the end of the year's lease. Further, the petitioners averred that a warning to remove was delivered by an officer of Court to the respondent, and that they had let the subject to a new tenant, Stewart, with entry to the land at Martinmas 1875, and to the mill, house, &c., at Whitsunday 1876. Stewart had manured the land and ploughed it, and had also worked the garden. The petitioners accordingly craved warrant summarily to eject Meiklem.

The respondent took a preliminary objection to the pursuers' title, whom he alleged, “if principal tenants, had not paid their principal rents;” and upon the merits inter alia denied—(1) the pursuers' principal tenancy, (2) the verbal notice of 30th September, (3) his own sub-lease from Dunlop & Co., (4) the alleged entry of Stewart, which Meiklem explained had been attempted but successfully resisted. Further, the respondent explained that he and his ancestors had occupied the land, mill, and house, &c. under the Dukes of Hamilton since 1709, and referred to certain disputes as to the water of the mill. In conclusion, the respondent stated that in 1874 the petitioners' manager alleged they had become tenants of the premises, and held the defender as their subtenant on same terms as he held under the Duke of Hamilton. That they sent him notice of 2d October too late, irregularly, and illegally. That a day or two after its receipt their manager called on defender, who, referring to the document, expressly asked if he was to flit at Martinmas 1875, and got for answer, “No, just work awa'.”

In the Sheriff Court the Sheriff-Substitute ( Spens) found that the warning given was inept, and that it was unnecessary to consider the other defences, and dismissed the action. And in the note appended to this interlocutor he said that the warning was bad upon three grounds—(1) It should have been given forty days before Whitsunday 1875; (2) the notice was for Martinmas for both houses and lands, whereas in any view the removal from the houses should have been Whitsunday 1876; (3) the notice was not 40 but only 39 clear days before Martinmas. The Sheriff-Substitute also held that tacit relocation emerged at Whitsunday 1875, no warning being then given.

The petitioner appealed to the Sheriff-Depute ( Dickson) who allowed a proof before answer, which was taken before the Sheriff-Substitute on 10th July 1876. The result of the proof was substantially to sustain the averments of the petitioners.

The Sheriff-Substitute, on 18th July 1876, found that the petitioners had failed to prove their title to sue, and sustained that defence; further found it unnecessary to pronounce other findings.

Messrs Dunlop & Co. appealed, and the Sheriff adhered, adding the following note:—

“ Note.—The defender challenges the pursuers' title as principal tenants for the period after the lease which he took from them terminated, viz., after Martinmas 1875 and Whitsunday 1876, as to the lands and mill, &c., respectively. It lay on the pursuers to prove their title so challenged, but they have not done so. The case is not within the principle urged for the pursuers, that a tenant may not challenge the title of the party from whom he has his lease, for the defender's lease was only up to the terms above mentioned; while the question is as to the pursuers' title after these terms.

It is with considerable regret that the Sheriff has found himself obliged to sustain this technical defence; for there seems to be no real doubt that the pursuers are still principal tenants in the mill and land in question. It appears to have been through mere oversight that they have not proved their tenancy.

The foregoing judgment precludes the Sheriff from entering into the other questions which were debated before him on the footing of his differing from the Sheriff-Substitute upon the question of title.”

The petitioners appealed against this interlocutor to the Second Division of the Court of Session.

Argued for the appellants—First, on the question of title—It is not in Meiklem's mouth to

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question our title, seeing that it is from us his own possession is derived. The possession now is on tacit relocation from the first lease; there is no different title this second year from what there was the first. The class of cases referred to by the Sheriff-Substitute is entirely different. In them ( Traill v. Traill) the tenant says to his landlord, or the person claiming to be such, “you are not the person from whom my title flows,” and of course the burden of proof then is thrown on the landlord.

Argued for the respondent—Possession was never interrupted; it had for many years been in the respondent's family. [ Lord Justice-Clerk—The one year's verbal lease from Colin Dunlop & Co. interrupted the continuous flow of possession. There is nothing to show that Messrs Dunlop's possession under the Duke extended to more than the year for which they let the mill; on the proof it is not clear that the tenancy went on.

At this stage their Lordships delivered their opinions on the question of title to sue—

Lord Justice Clerk—The respondent is in one of two positions; either he has no title at all, or he holds by tacit relocation on the verbal lease. Now, I think he is in the latter position, and of course he cannot in that case question the pursuers' title.

Lord Neaves—I concur, and think that to hold otherwise would lead to gross injustice. The subtenant's position under the principal tenant is just what it was under the landlord.

Lord Ormidale—I am of the same opinion. It is clear there was no necessity here for a written title, and that did not exist betwen any of the parties. The pursuers prove their averments by the respondent's own admissions. At the end of the year, if there was no warning, tacit relocation came into play. This is in reality an attempt to challenge the author's title.

I think the Sheriffs have been hasty in their judgment.

Lord Gifford— I agree entirely. The evidence is sufficient to show that Meiklem for the year 1874-5 held under the petitioners, and that is enough to sustain their title.

On the merits, it was argued for the respondent—The action has failed because there was no warning at all; what is called a warning, viz. the notice of October 2d, was utterly useless, for (1) under the Act 1555 the warning must be forty days before Whitsunday; (2) as it is thus bad for Whitsunday, it is so for Martinmas, not being forty days clear before the term-day.

Argued for the appellants—As to the Sheriff-Substitute's three objections to the warning, the first necessitates in a one year's lease warning before entry, the second is that the warning is bad only as regards the houses, and the third is not founded upon the Act, which merely says forty days, not forty “clear” days. The analogies of the appeal from the Circuit Court decisions, and of death-bed, are in point where the “clear” days are not specified. The whole objection comes to be that Meiklem was warned too soon out of the houses. The statutory warning does not apply to a small rural tenement let for one year. (3) There was waiver by the tenant, and rei interventus.

Authorities—Stair, ii. 9, 41; Erskine, ii. 6, 51; Macnair v. Lord Blantyre's Trs., 11 S. 935; Traill v. Traill, 1 R. 61; Act 1555, § 39, “Anent the warning of Tennentes;” M'Ritchie v. Thomson, Arkley 270; Act of Sederunt 1839; Sheriff Court Act 1853, § 29; Smith on the Computation of Time; Hunter on Landlord and Tenant, ii. 50, 54; Falconers v. Smith, 5 Br. Supp. 569; Brown v. Hill, Hume's Decisions, 563; Duke of Argyll v. Russell, 1709, M. App. v. Removing, No. 9; Blain v. Hunter, 8th February 1840, 2 D. 546; Forsyth v. Bruce, 22d November 1827, 6 S. 101.

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