Scottish Court of Session Decisions

David Frew, farmer, Hill of Westerhouse, Carluke, entered into possession of the said farm at Martinmas 1874 and Whitsunday 1875, under a verbal lease for eighteen years. The proprietor of the farm was the late Andrew Bell, Greenfield House, Wishaw, who died on 15th August 1885. The rent as finally agreed on was £100. A formal lease was prepared in 1876, but as the tenant took exception to its terms it was never executed. The tenant continued to pay the half-year's rent of £50 regularly at Martinmas and Whitsunday respectively until Martinmas 1886, when he declined to pay the half-year's rent then due, on the ground that he had counter claims against the landlord or his representatives which exceeded in value the amount of the rent due.

Mrs Bell, the widow and sole surviving trustee and executrix of the late Andrew Bell, brought an action in the Sheriff Court at Lanark against Frew to enforce payment of the half-year's rent.

The pursuer averred—“There became due and payable at the term of Martinmas 1886 the sum of £50, being the first half of the rent for the year commencing at Martinmas 1885 and Whitsunday 1886 respectively. Notwithstanding that the defender has been repeatedly desired and requested to make payment of the said rent he has failed, or at least delayed, to do so, and the present action has been rendered necessary.”

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The defender answered—“Admitted, under reference to the defender's statement of facts. The defender is not owing the pursuer any part of the rent sued for;” and in his statement of facts he set forth various counter claims.

The pursuer pleaded—“(1) The defender being the tenant, and having occupied and possessed the said lands and farm for the period stated, is liable in payment of the stipulated rent therefor, payable at Martinmas 1886, and decree should be granted accordingly, with expenses. (2) The claims of the defender are unfounded on fact, are irrelevant, and the pursuer is not owing the sums stated, or any part thereof.”

The defender pleaded—“(2) The pursuer being due and indebted to the defender in a sum in excess of that sued for, through faults and failures of herself and her predecessors, arising out of the same bargain, she is not entitled to decree for the sum sued for.”

On 22nd April 1887 the Sheriff-Substitute ( Birnie) pronounced an interlocutor allowing a proof habili modo.

“ Note.—The parties are referred to Bathie v. Lord Wharncliffe, 1883, 11 Macph. 490, and Paterson v. Earl of Fife, 1865, 3 Macph. 423.”

The pursuer appealed to the Sheriff ( Berry), who affirmed the Sheriff-Substitute's interlocutor.

“ Note.—I think that a proof cannot be avoided in this case. The defender denies the contract of lease on which the pursuer founds, and as a proof in support of the pursuer's case is necessary, the course taken by the Sheriff-Substitute of allowing a proof on both sides before answer seems expedient.”

After the proof the following interlocutor was pronounced by the Sheriff-Substitute:—“Finds the defender liable to the pursuer in £43, 14s. 10d., being £50, the half-year's rent sued for, less £1, 17s. 2d. excess of insurance, and£4,8s. loss by mineral workings, with interest on said sum of £43, 14s. 10d., as craved: Finds the defender liable to the pursuer in expenses,” &c.

The defender appealed to the Sheriff, who pronounced the following interlocutors:—“ Glasgow, 29th March 1889.—Having heard parties' procurators, and considered the whole case under reference to the annexed note, orders the case to the roll of the vacation Court.

Note.—The case set up by the pursuer, under which she claims payment of a half-year's rent from the defender is a lease for eighteen years at an annual rent of £100 payable half-yearly at Martinmas and Whitsunday. There has been no formal lease executed, but an unexecuted lease prepared in 1876, after the tenant had been in occupation of the farm for about a year, has been produced by the pursuer, and if it had been shown that that document embodied the agreement of parties, and rei interventus had followed upon it, the provisions contained in it might have been effectual. It is not necessary, however, to look further than to the evidence of the pursuer herself to see that the document was never accepted by the defender as setting forth the contract under which he occupied the farm. She says that the defender refused to sign it, that another document was prepared by him and sent by him to the landlord, her late husband, but that he in his turn would not sign the tenant's draft. In these circumstances the pursuer must be held not to have established that the rights of the parties are regulated by the unexecuted lease. In his defences the defender admits the statements in the condescendence as to the farm having been let to him for eighteen years at the rent specified, but that admission is given subject to certain qualifications as to the conditions of let, which are denied on the part of the pursuer. These qualifications relate to certain matters, including outlay for tiles, in respect of which counter claims are set up on behalf of the defender. Now, the pursuer cannot avail herself of the admission as to the amount of rent without accepting the qualifications under which the admission is made. The parties then being at issue as to the terms on which the farm was let, and the lease being for a period of eighteen years, the only competent evidence in the absence of proof by writing which is open to the pursuer for the purpose of proving the terms of the tenancy is a reference to the defender's oath. As to the competency and propriety of admitting this, I may refer to Swanson v. Gallie, 9 Macph. 208, and Macleay v. Campbell, 3 R. 999.”

Glasgow, 3rd May 1889.—Having resumed consideration of the case, and again heard parties' procurators thereon, allows the minute by the pursuer to be received and form No. 15 of process: Finds that by said minute the pursuer states that she does not wish a reference to the defender's oath: Finds that the only evidence of the pursuer's claim is the defender's admission on record, which must be taken subject to the qualification under which it is made, and according to which the pursuer is indebted to the defender in a sum exceeding that sued for: Therefore recals the interlocutor appealed against, and assoilzies the defender: Finds defender entitled to expenses, including those of the appeal, &c.

“ Note.—The pursuer states in the minute lodged on her behalf that she does not wish a reference to the defender's oath. In these circumstances I must, in accordance with the views stated in the note to my interlocutor of 29th March, decide in favour of the defender. The case seems to me to fall within the principles of Milne v. Donaldson, 1852, 14 D. 849.”

The pursuer appealed to the Court of Session, and argued—It was not sought here to declare a lease, but to enforce the payment of the rent admitted to be due at the rate hitherto paid. The tenant had occupied the farm and must pay for his occupancy. The counter claims were no defence to this action for rent. In any event, the onus of proving them was on the defender, and he had failed to do so.

Argued for the defender—This was a verbal lease for a term of years, and the rent

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due, unless admitted, could only be determined by his writ or oath. His admission could only be taken, as the Sheriff had held, subject to their qualifications. If the proof fell to be looked at the counter claims had been made out.

At advising—