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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wallace v. Anderson [1889] ScotLR 27_117 (30 November 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/27SLR0117.html
Cite as: [1889] ScotLR 27_117, [1889] SLR 27_117
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SCOTTISH_SLR_Court_of_Session
Page: 117↓
Court of Session Inner House Second Division.
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v.
Facts:
A tenant farmer at Whitsunday 1889 conveyed to a trustee his whole estate, including his rights under his lease, and granted at the same time to the landlord a deed of renunciation of his lease as at the following Martinmas. He continued by agreement to reside on and manage the farm. On 10th October 1889 the landlord sought to interdict the farmer from killing the ground game, alleging that he had no authority therefor either from himself or the trustee, who was occupier of the farm. The farmer opposed the application, alleging that he was occupier of the farm, and desired to protect his crops for behoof of his creditors.
Held ( diss. Lord Young) that as the pleadings disclosed a question for trial between the parties, and as caution had been found, the note was properly passed.
Hugh Robert Wallace, proprietor of the farm of Barneil, Ayrshire, raised this note of suspension to interdict William Anderson from killing ground game thereon.
The respondent became tenant of the farm of Barneil for nineteen years after Martinmas 1882. The lease included the following provisions—“Reserving all game of every description on the said lands, so far as not inconsistent with the Ground Game (Scotland) Act 1880, … with the exclusive privilege of … shooting … on the same by the proprietor or others having his authority, free of all damages and expenses: … It being hereby declared that the tenant shall have no claim on the landlord for any injury or damage done to the crops by game in any manner of way: … If the tenant shall at any time during the currency of this lease become bankrupt, … or if he shall voluntarily divest himself of his property by truste disposition or otherwise for behoof of his creditors, … then, and in any of these events, it shall be in the power of the proprietor to put an end to this lease, and to resume possession of the subjects hereby let without any declarator or process of law for that effect.”
On 2nd April 1889 the respondent executed a trust-deed for behoof of his creditors in favour of James Findlay, the landlord's factor, by which he assigned and conveyed his entire estate and effects, including his rights under the foresaid lease. At the same time he executed a deed of renunciation of the lease to take effect at Martinmas 1889. Findlay accepted the office of trustee under the foresaid trust-deed, and entered upon possession of the farm.
The complainer averred—“The respondent continues to reside on and manage the farm under the said James Findlay. Taking advantage of his residence there, he is regularly in the habit of killing the ground game on the said farm, although he holds no authority to that effect from the said James Findlay. He has been frequently warned by the complainer that he has no longer any right to kill the ground game, but he still continues the practice. The complainer is consequently forced to apply to your Lord-ships for interdict as craved.”
The respondent averred that for some time past his crops had suffered from over-preserving of game. “As the complainer declined to keep the ground game within reasonable limits, and as he refused to pay compensation for the partial destruction of the respondent's crops, the respondent had no other alternative but to exercise his right under the Ground Game Act in order to protect his crops from total destruction. The respondent during this year has suffered loss by partial destruction of his crops by the excessive stock of ground game by overpreserving to the extent of £60, as estimated by the complainer's factor, who is the respondent's trustee. Said trustee and creditors have made frequent complaints to the
Page: 118↓
respondent for not keeping down the ground game so as to prevent destruction to his crops, and accordingly he has as far as possible attempted to comply with their request by killing said game.” The complainer pleaded—“The respondent having no authority either from the proprietor or from the occupier of the said lands to kill the ground game, interdict ought to be granted as craved.”
The respondent pleaded—“(1) The respondent as occupant of said farm, being entitled under the Ground Game Act 1880 to kill the ground game on said farm, interdict should be refused, with expenses. (2) The respondent by permission, or at the request of his trustee, is entitled under said Act of Parliament to kill the ground game, and interdict should be refused.”
On 26th October 1889 the Lord Ordinary on the Bills ( Kyllachy), on caution, passed the note, and granted interim interdict.
The respondent reclaimed, and argued—He had admittedly granted a trust-deed, but that was for behoof of his creditors. He was tenant of the farm till Martinmas, and as such was the only occupier in the sense of the Act, and it was not necessary that the tenant should obtain written authority from the trustee for keeping down the rabbits. He was acting for the benefit of his creditors by saving his crops— Inglis v. Moir's Trustees, December 7, 1871, 10 Macph. 204; Fraser v. Lawson, December 21, 1882, 10 R. 396.
The complainer and respondent argued—The occupier of the farm was the only person who could lawfully shoot the ground game on this farm. The trustee was occupier. The tenant had granted a trust—deed in favour of the trustee, and unico contextu he had granted a renunciation of the lease. The trustee had kept on the former tenant as manager, but that did not constitute him the real occupier, as he had divested himself of all his rights in favour of the trustee. He merely acted as grieve for the trustee, and if he were to shoot ground game he needed a written order from the trustee Dobie, &c. v. Marquis of Lothian, March 2, 1864, 2 Macph. 789.
At advising—
But the only question that is before us now is, whether we should alter the interlocutor which the Lord Ordinary pronounced in the Bill Chamber, and that was—“Having considered the note of suspension and interdict, and answers thereto, in caution, passes the note, and meantime grants interdict as craved.” Now, this being the question, and as we are in the Bill Chamber, the only question is whether sufficient justice has not been done to Mr Anderson by the landlord—the complainer—having found caution to make good any damage that might be done to the farm, because the respondent was not allowed to kill ground game during that short time—from 10th October to Martinmas. In my opinion no injustice can be done to Mr Anderson by the note being passed on caution found by the complainer. I think we ought to adhere to the Lord Ordinary's interlocutor.
The case, however, struck me as so flimsy and unreasonable when we heard it fully argued, as we did upon the 2nd of November, that I wrote out my views upon it, which are the same as I now hold.
This is a note of suspension and interdict at the instance of the landlord of the farm of Barneil to interdict the respondent from killing ground game thereon. The respondent contends that he has right, as in a question with the complainer, to kill ground game on the farm till the term of Martinmas next—that is, till the 22nd of the present month of November—and it is not alleged that he ever claimed the right beyond that date. Whether or not he has the right till then is the only question between the parties. The note was presented on 10th October, when the utmost duration of the right claimed was six weeks—that is, between 10th October and 22nd November. To try the legality of the right alleged for this originally brief period of six weeks, the complainer saw fit to institute a process in this Supreme Court, and on the 26th October, when the period was reduced to twenty-six days, he prevailed on the Lord Ordinary to pass the note so that a record might be made up, and the question debated and decided necessarily after all interest in it had ceased. The whole period, viz., twenty-six days, which could ever be of any interest being covered by interim interdict. And now that the period is reduced to a fortnight, and the validity of this rapidly vanishing right has been fully argued before this Division by senior and
Page: 119↓
Such a course is so undesirable in the interest of both parties, not to speak of the time of the Court, that it ought if possible to be avoided, and I think it is possible. I shall state my reasons for thinking so.
The controversy between the parties is fully before us now on the note and answers and the documents printed, and the question on which it turns was, as I have stated, fully argued to us on that footing—neither party even hinting that there is any question of fact in dispute, or anything of any sort demanding or admitting of further inquiry. Assuming the respondent's right to kill ground game, there is no allegation or suggestion of excess in the exercise of it, or of anything objectionable in the mode and manner of exercising it, the complaint against him being stated and taken and argued on the footing that all he ever did or threatened would have been unobjectionable had he not granted the trust-deed which we have before us. The only question therefore regards the existence of the right, the respondent claiming no other than belongs to the tenant of the farm, and the complainer admitting that he has that right unless the trust-deed deprives him of it. Whether or not it does is thus the only question before us. On this question we had a full argument, and whether easy or difficult of decision I do not see how the further procedure proposed will assist us in the decision of it. Why, then, should we not decide it now? It may perhaps be said that a decision one way would lead to declaring the interdict prepetual, and that this is too serious a judgment to be pronounced in the Bill Chamber. When the question regards killing hares and rabbits, and the perpetuity is a fortnight, which will expire the week after next, I am unable to appreciate the view that the matter is too solemn and serious for decision in the Bill Chamber. But deferring to the views of the strictest formalist, I venture to think it clear that we may in the Bill Chamber refuse or dismiss a note of suspension as presented on insufficient grounds, although we might not there have sustained it as presented on sufficient grounds, or on grounds which we thought might possibly prove sufficient, otherwise than by passing it on to the Court. Now, my opinion is that this note has been presented on insufficient grounds, and ought therefore to be at once refused, and I do not feel constrained to abstain from giving immediate effect to this opinion, because had I formed another opinion it would only have led to the passing of the note whereby the case would have passed out of the Bill Chamber into the Court for more formal consideration there.
The trust-deed was executed on 2nd April last, and is in the usual and familiar terms of a deed whereby a debtor voluntarily conveys his whole estate to a trustee to pay his debts. It specially assigns the truster's current lease of the farm of Barneil, with the stock and crops thereon, and confers express power to renounce the lease at the ensuing term of Martinmas. It appears that the landlord (the complainer) was cognisant of the whole affair, as indeed he could hardly fail to be, the trustee being his factor. It also appears that he saw fit to obtain a renunciation of the lease from the truster himself as at Martinmas next, and the deed of renunciation signed by him of the same date as the trust-deed is produced. The truster continued to reside on and manage the farm exactly as before, and it appears from a clause in the trust-deed that it was contemplated and intended that he should.
We were referred to the terms of the lease excluding assignees and declaring an irritancy in the option of the landlord, in case the tenant shall voluntarily “divest himself of his property by trust-disposition or otherwise for behoof of his creditors.” I fail, however, to see the relevancy of the reference. In the first place, there is no question before us regarding the validity of the assignation of the lease to the trustee as in a question with the landlord, and without expressing any opinion in the matter I shall, for the purpose of the only question before us, assume, if the complainer pleases, that it is invalid, an assumption so obviously fatal to the complainer's case that it is superfluous to point out how it is so. Neither, in the second place, is there any question before us regarding the landlord's right to insist on an irritancy of the lease before Martinmas, on the ground that the tenant has divested himself of his property by a trust for behoof of creditors. There would probably be a good answer to such a claim on his part, but he makes none such, and cannot in this suspension, which is presented on the footing that the lease subsists till Martinmas next.
I must therefore hold that the lease subsists, and has still a whole fortnight to run, and that the respondent, as tenant under it, is not only entitled but bound “to reside personally on the farm,” and manage it as he has been and is doing. With the trust for creditors the landlord has, so far as I can see, no concern whatever, except in so far as he may see fit to accede to it as one of the truster's creditors if he be one. Whether or not he might have taken advantage of it as a ground for irritating the lease I do not inquire. That it cannot possibly
Page: 120↓
These views are, I think, conclusive of the case. When plainly stated, the whole matter has indeed a very trifling aspect. A tenant farmer shortly before Whitsunday renounces his lease as at the following Martinmas, and the landlord accepts the renunciation. At the same time, with the landlord's knowledge and tacit assent he grants a trust of his whole estate, including the brief residue of his lease, for behoof of his creditors, undertaking meanwhile to continue in the occupation and management of the farm. He manages exactly as he had been in use to do, including the killing of ground game, all in a manner quite unobjectionable on the part of a tenant. Within six weeks of the end, and without any change of conduct on the tenant's part, it occurs to the landlord that not he (the tenant), but the trustee for his creditors (who might have been an Edinburgh accountant), is the proper person to kill the ground game, and he institutes proceedings in the Supreme Court to try the question. The trustee for creditors does not object to the truster's conduct, and plainly could not allege, as he certainly does not, that the creditors are interested to object. Quite as plainly the landlord's objection is not made in the interest of the creditors, but only to preserve the ground game for his own shooting, or perhaps (and more likely) because of some irritating personal collision between him and the tenant, whichever of them may have been to blame or most to blame for it. The sooner such an unreasonable, and I think unseemly litigation is terminated the better for both parties, and being of opinion, for the reasons which I have stated, that the complainer's case is unfounded in law, I am for dismissing the suspension now, and with expenses.
We are in the Bill Chamber, and there are only two forms of judgment open to us. We may dismiss the note if we think that the allegations in it are plainly unfounded, or we may affirm the Lord Ordinary's interlocutor. We can do nothing else; we cannot declare the interdict perpetual in this process.
I should be glad to throw out the note if I thought that its statements were unfounded, but I am far from thinking that just now. I therefore think that the only proper judgment for us to give is to affirm the Lord Ordinary's interlocutor which passes the note upon caution.
My opinion is that the statement and answers disclosed a question to be tried between the parties, and that the Lord Ordinary rightly passed the note so that that question might be tried and decided.
With regard to the question of caution, I do not think it of much consequence. Possibly it was unnecessary. But I suppose it was demanded, and I think the Lord Ordinary rightly made it a condition, although it might be a mere matter of form.
The Court adhered.
Counsel for the Appellant— Rhind— Gunn. Agent— John Mackay, L.A.
Counsel for the Respondent— Low— C. N. Johnstone. Agents— Cooper & Brodie, W.S.