Scottish Court of Session Decisions

Misses Harriet Scott, Jane Scott, and Magdalen Scott were the proprietors of a shop situated in St Andrew Street, and a dwelling-house in Smeaton's Close, Leith. This house and shop were separate, but near each other. Isabella Cook was tenant of both house and shop, under missives of lease from Whitsunday 1885 to Whitsunday 1886. The proprietors called upon Cook to remove at Whitsunday 1886 under a peace-warning, of which the executions were dated 3d April 1886, but Cook refused to remove, and a petition for her ejection was accordingly presented in the Sheriff Court of the Lothians and Peebles at Edinburgh.

This was a process of summary ejection from both premises.

The pursuers stated that on 3d April they had given the defender peace-warnings to remove at Whitsunday, but she had failed to do so, and they produced (1) an execution of warning applicable to the shop, and (2) an execution of warning applicable to the house, as evidence that warning was duly given.

The defender denied that she had been “peace-warned,” and alleged that the “executions referred to are false and fabricated. It is not true that on 3d April last, or on any other date, James Lindsay, sheriff-officer, Leith, served upon the defender or her husband, or any servant for them, any intimation to the effect as therein stated.” She further averred that she was married to a man called Henry Ayre, and that he not being called the action should be dismissed.

The pursuers, inter alia, pleaded—“(3) The executions in question cannot be pleaded by way of exception in the Sheriff Court.”…

The Sheriff-Substitute ( Hamilton) repelled the pursuers' third plea, and allowed a proof.

“ Note.—.… The question is, whether the defender is entitled to maintain this defence by way of exception under the 11th section of the Sheriff Court Act 1877, which provides—‘When in any action competent in the Sheriff Court a deed or writing is founded on by either party, all objections thereto may be stated and maintained by way of exception, without the necessity of bringing a reduction thereof.’ The Sheriff-Substitute is of opinion that the words ‘deed or writing’ used in this section are wide enough to embrace the executions here founded on, and that it would be against the policy of the Act of 1877 to compel the defender to bring an action of reduction in the Court of Session.”

At the proof James Lindsay, the sheriff-officer, deponed—“The peace-warnings in question were given in writing, and therefore what I served was in writing. They were served in only one place—the shop. There was a house at the back. There was no one in the house when we went there.”… “I think it was defender's mother that we found in the shop.”… “The two citations were served in the shop because we could not get into the house, the door being locked. The house and shop were separate, but they were

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quite close to each other. I gave to defender's mother the papers relating to both the house and shop.” The defender deponed that Lindsay had never been in her house on 3d April; that she had been in bed in a room at the back of her shop the whole of that day, and had never heard of his coming to the shop. Her mother also denied that Lindsay had been to the shop. On the other hand, a witness deponed that she saw Lindsay go to defender's house on April 3d, and directed him to the shop.

On 15th July 1886 the Sheriff-Substitute found that defender was duly warned to remove, and granted warrant of ejectment as prayed for. The defender appealed to the Sheriff. On 2d August 1886 the Sheriff ( Crichton) adhered.

The defender appealed, and argued—(1) The citation was bad both as regarded the shop and the house, for the Act required either personal service or by means of a servant. The citation was made upon the defender's mother, which was not good, it not being enough to serve it on anyone who happened to be in the house—Act 1540, cap. 75; Campbell on Citation, p. 25. (2) The action was incompetent, because the defender's husband was not called as a party—Bell's Prin. sec. 1610; Mackay, i. 342; Fraser on Husband and Wife, i. 582.

Argued for the pursuer—(1) The defender entered appearance as “Isabella Cook,” not “Isabella Ayre.” It was vain at this stage of the proceedings to assume the status of a married woman. (2) The citation was good, and in any case the solemnities of the Act were not required in the warning of tenants from urban tenements—Ersk. ii. 6, 47; Chirnside v. Park, 1843, 5 D. 864; Macdonald v. Sinclair, 1843, 5 D. 1253.

At advising—