Scottish Court of Session Decisions

This was a note of suspension and interdict, presented by Sir Frederick Johnstone of Westerhall, against John Thomson, tenant in Solwaybank, asking the Court to interdict, prohibit, and discharge the said John Thomson from ploughing, sowing, manuring, labouring, or in any way interfering with the said farm of Solwaybank, or any of the. fields thereof; and further, to interdict, prohibit, and discharge the said John Thomson from preventing or in any way interfering with the complainer, or any one authorised by him, entering upon and ploughing, sowing, manuring, labouring, and cultivating the said farm of Solwaybank, or any of the arable fields thereof, and also having such use of the farm-steading as may be necessary for the stabling and lodging of the animals employed by them in such cultivation. The respondent was tenant of the farm of Solwaybank, under a lease which expired, as to the arable land, Candlemas 1877; as to the meadow ground, 1st April following;

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and as to the houses and grass, at Whitsunday following. No formal warning was given to the tenant before Candlemas 1877, but the landlord averred that certain correspondence had passed between him and the tenant before that term which constituted an obligation on the tenant to remove.

Under these circumstances, this note was presented, and refused by the Lord Ordinary on the Bills ( Curriehill), with the following note:—

“Note.—The lease under which the present question arises expired at Candlemas 1877 as to the arable lands, 1st April as to the meadow land, and Whitsunday as to the houses and grass. The tenant is taken bound to remove at these respective periods, ‘and that without any warning or process of removing, otherwise the said John Thomson binds and obliges himself and his foresaids to pay £160 sterling per annum of additional rent until renewed, … without prejudice to the landlord's right to insist in a process of removing.’

“The tenant refused to leave the farm at Candlemas 1877, and the complainer seeks to have the tenant interdicted from cultivating the farm for the crop of this year, as being truly no longer tenant. Under the Sheriff Court Act 1853, which comes in place of the regulations of the Act of Sederunt 1756, formal notice of removal in one or other of the forms prescribed by the statute ought to have been given by the complainer at least forty days before Candlemas, in order to entitle him to remove the respondent from the farm; but no such notice was given, and the tenant was therefore entitled to regard the farm as relet to him for one year by tacit relocation. In November 1876 and January 1877 some negotiations took place in writing between the complainer and respondent as to a renewal of the lease for a term of years, but no arrangement was effected. In the meantime, the farm was advertised repeatedly to be let, with entry to the arable lands as at Candlemas 1877, and it has been let to another tenant conditionally on the respondent being found to have no right to continue in possession. The complainer maintains that by these proceedings on the part of the tenant he has waived his right to retain the farm by tacit relocation, or to object to remove on the ground of want of formal statutory notice. I do not think the contention is well founded, because, although the complainer may have had ground for believing that the respondent considered his tenancy at an end at Candlemas 1877, he was nevertheless bound, if he desired to ensure his tenant's removal, to give him the statutory notice. There must, in my opinion, be either a letter from the landlord delivered or posted to the tenant forty days before the ish requiring him to remove, proved by a certificate of a messenger or sheriff-officer, or an acknowledgment by the tenant, indorsed on the lease. Nothing equivalent to either of these is to be found in this case. The case seems to me to fall under the rule laid down by the Court in the case of the Magistrates of Perth, February 20, 1798, Hume 562.

“The note of suspension and interdict must therefore be refused, with expenses.”

The complainer reclaimed, and argued—No warning was necessary. It is possible to introduce by implication an obligation to remove without warning, and an undertaking to that effect by a tenant will be enforced— Heron v. Rollo, June 28, 1825, 4 S. 118; Macnair v. Blantyre's Tutors, July 9, 1833, 11 S. 935, Hunter, vol. ii. 31, new ed. There were here res gestœ sufficient to bind the tenant to remove without warning, as in Blair v. Ferguson, Feb. 8, 1840, 2 D. 546. The letters passing between the parties import an obligation to remove, or at least a waiver of the necessity of warning. If that is so, the tenant is wrongously in possession here, and it is competent to remove him by an interdict.

The respondent was not called on.

At advising—