Scottish Court of Session Decisions

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Cite as: [1883] SLR 20_295, [1883] ScotLR 20_295

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SCOTTISH_SLR_Court_of_Session

Page: 295↓

Court of Session Inner House First Division.

[Sheriff of the Lothians.

Tuesday, January 9, 1883.

20 SLR 295

Cunningham

v.

Black.

Subject_1Process
Subject_2Appeal
Subject_3Competency
Subject_4Value of Cause — Conclusions of Action.
Facts:

In an appeal in an action at the instance of a landlord to have his tenant ordained to stock and plenish the subjects so as to give security for the current halfyear's rent, the respondent (the tenant) objected to the competency of the appeal, on the ground that the amount of the halfyear's rent was only £15. It appeared that the question to be decided depended upon whether the respondent was still bound by the lease, of which there were yet four years to run. Held that the appeal was competent.

Headnote:

Ebenezer Cunningham, farmer, Gorebridge, proprietor of a d welling-house and workshop at Mossend there, raised this action in the Sheriff Court at Edinburgh against George Black, at one time a builder in Edinburgh. The prayer of the petition (which is fully quoted in the opinion of the Lord President) was to have the defender, as tenant of the subjects referred to, ordained to stock and replenish the subjects, and failing to do so to have him ejected therefrom.

Page: 296↓

The defender had entered into a five years' lease, commencing at Whitsunday 1880, of these premises, but after occupying them for a short time under the lease he abandoned them, and sent back the keys to the pursuer. On account of his failure to pay the rent due at Martinmas 1881, the pursuer took proceedings against him for sequestration for rent, and in the sale which followed most of the furniture and effects which had been brought by him into the premises were disposed of. In consequence of his alleged failure to replenish the subjects with other stock and effects, the present application was brought. The halfyear's rent of the subjects, which was payable at Whitsunday 1881, and plenishing in security of which the pursuer demanded, was £15.

The defence was that the defender had been misled by the pursuer as to the nature and extent of the business done in the subjects, and that he had been obliged, on finding that the pursuer's representations were untrue, to abandon possession. He stated that he had left sufficient goods on the premises to meet the current halfyear's rent, and also that he had proposed to resume occupation, but had been prevented by the pursuer from doing so.

After a proof relating to the questions raised by this defence, the Sheriff-Substitute ( Hamilton) found it not proved that the defender had proposed to resume occupation, and been prevented from doing so by the pursuer; and found in law that the lease was still binding upon the defender, and that the pursuer was entitled to enforce all the obligations under it. He therefore repelled all the defences, and ordained the defender to stock and plenish the premises, or find caution for the rent specified in the petition, i.e., that payable at Whitsunday 1882, under certification that should he fail to do so warrant of ejection would be granted.

On appeal the Sheriff ( Davidson) recalled this interlocutor, found that the defender had ceased to occupy the subjects with the consent of the pursuer, and assoilzied him with expenses.

The pursuer appealed to the First Division of the Court of the Session.

The defender objected to the competency of the appeal, on the ground that the value of the cause was only £15, as was shown by the conclusions of the petition, which only referred to one halfyear's rent. The case of Drummond v. Hunter, January 12, 1869, 7 Macph. 347, founded on by the pursuer, was distinguishable.

Argued for the pursuer—Though the conclusions of the action were for security for one halfyear's rent, the case involved the question whether a lease for five years was still binding. It was a case almost exactly like Drummond.

Authorities— Singer Manufacturing Company, May 14, 1881, 8 R. 695; Aberdeen v. Wilson, July 16, 1872, 10 Macph. 971; Henry v. Morrison, March 19, 1882, 8 R. 692.

At advising—

Judgment:

Court of Session Inner House Second Division.

Lord President—The first matter to be considered in this case is, whether or not the appeal is competent? I am of opinion that it is competent, and further, that the real value of the cause is not to be determined by the amount of rent, security for which is prayed for in the first part of the prayer of the petition. But the prayer of the petition must be taken as a whole in order to understand the nature and extent of the question decided by the Sheriff-Substitute. It is in these terms:—“To ordain the defender forthwith to stock and replenish that dwelling-house, garden, workshop, stable and yard, situated at Mossend, near Gorebridge, belonging to the pursuer, and let to the defender by lease dated 17th June 1880 for the period from the term of Whitsunday 1880 to Whitsunday 1885, so as to afford sufficient security for payment of the halfyear's rent to become payable at the term of Whitsunday next 1882, and failing the defender's so doing within a certain short space to be fixed by the Court, to grant warrant to summarily eject and remove the said defender, his sub-tenants, and dependents, furth and from the said dwelling—house, garden, workshop, stable, and yard, and thereafter to grant warrant to relet the said premises at what rent can be obtained therefor and then follows a reservation of the pursuer's claim for the halfyear's rent.

Now, we have here a distinct alternative offered to the defender; either he is to replenish the subjects which were displenished by the sale following on the sequestration, or failing his so doing he is to be removed, and warrant is to be granted to the pursuer to relet the premises. In this way the question is fairly raised, whether or not there is a subsisting lease, and that, I think, is the real question for determination in this case; not the narrower one of the defender's liability for a halfyear's rent of the premises, but whether or not the landlord has a tenant, and if so, whether the tenant is bound by a five years' lease.

The present question seems to me to be decided by the case of Drummond v. Hunter, which I consider to be a very sound judgment, while the other cases to which we are referred do not appear to me to have any application. Aberdeen v. Wilson is the standing authority in cases where the petition concludes for the delivery of certain subjects, or failing delivery for payment of a sum under £25, “or such other sum as shall be ascertained to be the price or value” of such articles. The Court held in that case that such a prayer is of sufficient value to sustain the competency of the appeal, and that holds good whether the sum is mentioned or not.

On the authority of Drummond v. Hunter I think this appeal is competent. But that case does not here apply. [ On the merits, his Lordship held that the defender had failed to show any reason why he should be liberated from the conditions of his lease.

Lord Mure—I concur with your Lordship in thinking that this case is ruled by that of Drummond v. Hunter, and I do not see that the rule laid down in that case is at all encroached on by the case of Aberdeen v. Wilson. The rule of law laid down in Drummond v. Hunter is, that when the true question in a case is whether there is really a subsisting lease, it is of no consequence that the sum concluded for in the prayer is under £25. In the present case the defender is called upon by the conclusions to do certain things under an existing lease, and failing his doing what is required of him he is to be ejected from the premises, and the lease to be held as terminated. That is substantially the nature of the action, and

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the mere fact that what the pursuer asks for is security for a halfyear's rent, which happens to amount to £15, cannot prevent either party bringing up the case upon appeal when the real value of the cause is above £25.

Lord Shand—I am of the same opinion. Though the conclusions are limited to security for a halfyear's rent of the subjects, and that only amounts to £15, yet it cannot be said that that fixes the value of the cause as being under £25. No doubt, in the ordinary case it is usual to look at the conclusions of the summons in order to get at the true value of the cause, but the real question may not thus in every case be disclosed. Even supposing a sum less than £25 be expressly mentioned, if it appears that the real value is in excess of the sum concluded for, then the competency will be determined by the true value of the question.

In the present case, though £15 is the sum mentioned, yet it appears that the real question between the parties is one of much more value. I should, even in absence of authority, have come to the same decision as your Lordships, but in spite of Mr Shaw's attempt to distinguish this case from that of Drummond, I am clearly of opinion that the present case is very similar to, and falls to be decided in accordance with, the principles there laid down.

Lord Deas was absent.

The Court sustained the competency of the appeal, and on the merits recalled the interlocutor of the Sheriff and reverted to that of the Sheriff-Substitute.

Counsel:

Counsel for Pursuer— Thorburn. Agent— Andrew Wallace, Solicitor.

Counsel for Defender— Shaw. Agent— David Forsyth, S.S.C.
1883