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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Black v. Clay [1893] ScotLR 31_42 (3 November 1893)
URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0042.html
Cite as: [1893] ScotLR 31_42, [1893] SLR 31_42
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SCOTTISH_SLR_Court_of_Session
Page: 42↓
Court of Session Inner House First Division.
[
v.
Facts:
Section 7 of the Agricultural Holdings (Scotland) Act 1883 provides that a tenant shall not be entitled to compensation under the Act “unless four months at least before the determination of the tenancy” he gives notice in writing to the landlord of his intention to make a claim for compensation under the Act.
The lease of a farm bore to be for nineteen years from and after the
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entry of the tenant, which was declared to be to the houses, grass, and fallow land at 26th May I860, to the arable land in corn crop at the separation of the crop of the same year from the ground, and to the barns, barnyard, and two cot-houses at Whitsunday 1861. The lease was continued by tacit relocation until May 1891, when the landlord obtained decree against the tenant ordaining him to remove from the houses (with the exceptions after mentioned), grass, and fallow land at Whitsunday 1892, from the arable land at the separation of the crop of the same year from the ground, and from the barns, barnyard, and two cot-houses at Whitsunday 1893. On 4th June 1892 the tenant sent the landlord a notice of claim for compensation under the Agricultural Holdings Act. In a question between the landlord and tenant as to whether the notice of claim had been timeously given, held that in regard to such a question an ish at the separation of the crop was equivalent to a Martinmas ish, and that the notice had been given timeously, in respect that it had been given more than four months before Martinmas 1892.
This was an action of suspension and interdict raised by James Richardson Black of Horndean, Berwick, against James Clay, lately his tenant in the farm of Winfield, to prohibit him from proceeding with a petition to the Sheriff for the appointment of a referee under the Agricultural Holdings (Scotland) Act 1883.
The respondent James Clay was tenant of the above farm under a lease which bore to be for nineteen years, “from and after the entry of the said John Clay, which … is declared to be to the houses (with the exceptions after mentioned), grass, and fallow land on the 26th day of May 1860, to the arable land in corn crop at the separation of the crop of the same year from the ground, and to the barns and barnyard and two cot-houses at Whitsunday 1861, from these periods respectively, to be possessed by the said John Clay and his foresaids during the space above written.”
This lease was extended by tacit relocation until May 1891, when the complainer obtained decree in an action of removing against the respondent. By this decree the respondent was ordained to remove “from the houses (with the exceptions after mentioned), grass and fallow land at the term of Whitsunday 1892, from the arable land in corn crop at the separation of the crop of the same year from the ground, and from the barns and barnyard and two cot-houses at Whitsunday 1893.” …
On 22nd January 1892 the respondent sent in a notice of claim under the Agricultural Holdings Act, which was declared by the complainer not to be sufficiently specific to comply with the requirements of the Act, and accordingly on 4th June 1892 the respondent posted to his landlord, the complainer, another notice of claim dated 2nd June, in which he referred to the three terms mentioned in the decree quoted above as those of the determination of his tenancy.
On 28th June 1893 the respondent served the complainer with a petition in the Sheriff Court of Berwickshire, craving the appointment of a referee under section 2 of the Agricultural Holdings Act, in respect of his notice of claim against the complainer dated 2nd June 1892.
The complainer raised a note of suspension and interdict against the respondent proceeding with the petition, and pleaded that the pretended notice of claim referred to in the petition were inept and invalid.
The respondent pleaded, inter alia—“(2) The respondent having given proper notice of his claim in terms of the statute four months before the determination of his tenancy, the note should be refused with expenses.”
Section 7 of the Agricultural Holdings Act provides—“Notwithstanding anything in this Act, a tenant shall not be entitled to compensation under this Act unless four months at least before the determination of the tenancy he gives notice in writing to the landlord of his intention to make a claim for compensation under this Act…. Every such notice … shall state, so far as reasonably may be, the particulars and the amount of the intended claim.”
On 20th July 1893 the Lord Ordinary ( Low) pronounced the following interlocutor “The Lord Ordinary having heard parties' procurators, and considered the note of suspension and interdict and answers thereto, Refuses the note and recals the interdict: Finds the complainer liable in expenses, &c.
“ Opinion.—The question in this case is, whether the notice of claim for compensation under the Agricultural Holdings Act, which was given by the respondent on the 4th June 1892, was given timeously—that is to say, four months before the determination of the tenancy.
The complainer does not now maintain that the notice required to be given four months before the term of Whitsunday 1892, but he argued that it required to be given four months before the actual separation of the crop of that year.
It was held in the case of Strang v. Stuart, 14 R. 637, that for the purposes of the Agricultural Holdings Act the determination of the tenancy is when a total determination of the tenancy takes place, and no further possession can be had by the tenant in terms of the lease.
In the present case the respondent was, in terms of the lease, entitled to retain possession of the barn and cot-houses until Whitsunday 1893, and the respondent argued that the determination of the tenancy did not take place until that term. There is force in the argument, but I am not prepared to express an opinion on the point, as I think the notice was timeously given in view of the termination of the respondent's possession under the lease of the arable land.
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I have already said that it was conceded by the complainer that the termination of the possession of the arable land was the point of time to be regarded, but he argued that as the respondent was only entitled to hold the land until the separation of the crop, the actual date when the crop was separated must be ascertained.
The tenant's claim for compensation under the Act is absolutely lost if he does not give notice four months before the termination of the tenancy, and it must be an anomalous result if the four months fell to be calculated from a date which cannot be ascertained beforehand, but which depended upon the character of the particular season. Thus a tenant might give notice four months before the ordinary time when the crop was secured, and an unusually early harvest might cut him out of his claim. Again, a claim which would be lost if the tenant gathered his harvest expeditiously might be saved if he was dilatory in the work.
I think that an ish at the separation of the crop is practically a Martinmas ish. The rent of a farm is due for the crop and possession of each year separately, and the term of Martinmas is regarded as the end of one crop year and the beginning of another. It is assumed on the one hand that the crop will be secured by Martinmas, and on the other hand the tenant has up till Martinmas to secure the crop. No doubt if the crop is secured before Martinmas the incoming tenant could not be refused access to the land for the purpose of ploughing, but the outgoing tenant is entitled to exercise his discretion as to the most suitable time for gathering the harvest. And accordingly it is not uncommon that the ish and entry of the arable land is made at ‘the separation of the crop, or Martinmas, the two terms being used as synonymous.’
The question therefore is, whether, it being admitted that the tenancy did not determine until the separation of the crop, notice was timeously given upon the 4th of June? I think that the question must be answered in the affirmative—(1) because if there was no specific point of time from which the four months fell to be calculated, but if in every case of this sort the actual date of the separation of the crop had to be ascertained, the statute would be practically inextricable; and (2) because under the lease the respondent had, in my opinion, a title to possess the lands until Martinmas, if he found it necessary or expedient to do so, for the purpose of gathering the crop.
I am therefore of opinion that the note falls to be refused, with expenses to the respondent.”
The complainer reclaimed, and argued—The tenant practically removed at Whitsunday, before which (18th May) he had his displenishing sale. After that date all he had was a limited common law right of possessing and using the farm buildings for the purpose of winning the crop on the ground. If he had sold the crop to the incoming tenant this right would have ceased. The purpose of the four months notice prescribed by the Act was to enable the landlord to verify the statement as to what had been put in the ground by the tenant, but after Whitsunday nothing was put in by him. The value of the barns and cot-houses was an infinitesimal part of the rent of the farm, and it could not be argued that “tenancy” as spoken of in the Act terminated only with the removal from them. This case fell directly under the rules laid down in the case of The Earl of Hopetoun v. Wight, &c. ( Hunter's Trustees) where the second of two terms of removal was held to be the one to be considered in the question of timeous notice of removal by the tenant to the landlord— Wight v. The Earl of Hopetoun, July 10, 1863, 1 Macph. 1074, 2 Macph. (H. of L.) 35. The cases of Strang and in re Paul quoted for the respondent were easily distinguishable from the present, for in each of them the tenant had possession of a substantial part of the farm till the later term of removal, and so could not make out his claim before the earlier one as he could easily have done here.
Argued for the respondent — The case turned upon the meaning of the words “determination of tenancy” in the Act. The purposes of the Act could only be served by notice being given at a time when the nature of the claim could be approximately fixed, so by “determination of the tenancy” was meant the time when the tenant could be asked by the landlord to remove from the whole of his holding. The decree in the landlord's action of removing showed that part of the holding remained in the tenant's hand till Whitsunday 1893. That was the date before which the statutory notice must be given. If the landlord had to give in his counter claim before the tenant actually left, he could not anticipate the damage which the tenant might subsequently do to the buildings, &c. [Lord President—The same objection might apply to the tenant having to give the notice four months before leaving, for he might have further claims arising during that period.] The respondent's interpretation would at anyrate reduce this inconvenience to a minimum. The case of Wight v. Earl of Hopetoun did not contradict this view, for it did not interpret the statute, but a special clause in a special lease— Strang v. Stuart, March 10, 1887, 14 R. 637; in re Paul, November 19, 1889, L.R., 24 QBD 247.
At advising—
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In the argument addressed to us the complainer relied mainly on the authority of the decision in Wight v. Earl of Hopetoun, a decision depending on the construction of a written contract, and which was said to be capable of application to the cognate question which arises on the construction of this statute. It may be convenient to consider, first, what would be the true principle of construction to be applied to the statute, supposing there were no decisions to guide us in this matter.
The respondent's holding is, or was, a lease for nineteen years of a farm which is partly arable and partly pastoral, and which is therefore as regards tenure and entry to be classed as an arable farm. According to universal custom there is for such farms a duplicate entry, which results from this, that entry to arable land can only be given at or after the separation of the crop from the ground, while considerations of convenience have led to the term of Whitsunday being generally chosen for the entry to houses and pasture. We know that there are differences of local custom as to which of these entries shall precede the other. We are familiar with leases which fix the entries to the houses and the arable land respectively as at Whitsunday and separation of the crop of the same year; and we know that it is usual in certain localities to give entry first to the arable land, the occupation of the house being deferred to the Whitsunday following. The lease in question is peculiar in this respect, that it contains three distinct entries—that is, an entry to the houses (with the exceptions after mentioned), grass, and fallow lands on the 26th of May 1860, to the arable land in corn crop at the separation of the crop of the same year from the ground, and to the barns and barnyard and two cot-houses at Whitsunday 1861. It is declared that the location for nineteen years is to be “from these periods respectively,” and again in a later clause, under the head of accommodation for the outgoing tenant, it is provided that Mr Clay and his foresaids “shall, in addition to the barns, barnyard, and two cot-houses before referred to, have stable-room allowed them for two pairs of horses, with the straw required for fodder and litter, without any charge, and that until the term of Whitsunday after their removal from the arable land as aforesaid.”
The question then is, which of these three terms is to be taken as the “determination of tenancy” from which the time of giving notice is to be reckoned? The statute says (sec. 42) that “determination of tenancy” means the termination of the lease “by reason of effluxion of time or from any other cause,” but, as has been before observed, this definition does not make the matter any clearer, because the possession under the lease terminates at different times. But in construing the statute it is important to observe (1) that there is no limit fixed as to the time within which improvements may be made for which the tenant shall have a claim; and (2) if we assume that the last term of removal is the one most probably intended we must follow this construction consistently in all cases, and irrespective of whether the latter term be Whitsunday or Martinmas or any other date. The statute contemplates that the notice to be given by the tenant to the landlord should embrace (if the tenant desired it) all improvements which had been made by the tenant within the currency of the lease; but this object could not very well be attained under a lease in which the successive terms of removal extend over a whole year if the tenant were put under the obligation to give notice four months prior to the first of these terms, or sixteen months before the actual termination of the lease according to the ordinary use of language.
It was objected that where the last of the prescribed terms of removal is the separation of the crop from the ground, this could not be the term from which notice is to be reckoned, because it is an indefinite time, and represents the end of a series of agricultural operations rather than a term certain. But it seems to me that this objection is directed not so much against one particular construction of the statute as against the statute itself, because if the alternative view were taken that notice must be given four months before the earliest period of removal, then the objection would apply to the ascertainment of the period in leases like that in Strang v. Stuart, where the entry is to the arable land at Martinmas and to the houses and grass at the Whitsunday following. The answer is—and there is authority for the proposition—that the tenant is understood to have until Martinmas to reap and ingather the crop of the arable land, and that the second legal term for payment of rent is Martinmas, because according to all the authorities that is the term at which the crop is supposed to be fully reaped. The reason why the expression “separation of the crop” is used in the clauses relating to entry and removal is that the incoming tenant may have access to each field as soon as its crop has been ingathered, and shall not be liable to be kept out of possession by a troublesome outgoing tenant in the assertion of a theoretical right to retain possession until Martinmas. But this construction is quite consistent with Martinmas being the autumnal term wherever it is necessary that something to be done in fulfilment of the lease should be referred to a definite day, payment of rent being a clear case in point. I have therefore no difficulty in holding that where notice has to be given four months before the autumnal term the term of Martinmas is the time from which the period of four months is to be reckoned.
It has already been found by a decision
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There remains for consideration the argument that was maintained to us, founded on the concurring decisions of the Court of Session and the House of Lords in Wight v. Earl of Hopetoun. That was a decision on the construction of a lease for nineteen years, renewable in perpetuity on notice of renewal being given by the tenant to the landlord. The notice was to be given “at least twelve months before the expiry of the above term of nineteen years,” and by the terms of the lease the entry to the arable lands was at the separation of the crop subsequent to the Whitsunday entry for houses and pasture. The notice given was held to be insufficient because it was not given twelve months before the Whitsunday term, when the tenant's possession of the houses and pasture came to an end. The construction there put upon the obligation to give notice was therefore different from the construction which I suggest as the true construction of the statutory obligation in the Agricultural Holdings Act, and it is proper to notice that amongst the reasons given by the Lord Chancellor for the judgment, his Lordship refers to the difficulty of determining what precise time is meant by the separation of the crop from the ground in the alternative view of the case of notice being reckoned from the term of entry to the arable lands. But Lord Wensleydale, as I read his Lordship's opinion, construed the obligation as meaning that notice must be given at the earlier term, because the intention was that the landlord should have a year to look out for another tenant in the event of the lease not being renewed, and in this view the other judges of the Appellate Court concurred. Now, if this be the true ground of judgment, the case of Wight v. Hopetoun is an authority entirely consistent with the judgment which I propose, because the principle suggested by Lord Wensleydale is this, that when there are two terms of entry or removal, and the words of the obligation are indifferently applicable to either of these, we are to look to the purpose and motive of the obligation to ascertain which view is the more consistent with the intention of the parties. This is also the principle announced in the passage which I have quoted from the Lord Justice-Clerk's judgment in Strang v. Stuart, but as the motive of the statutory requirement of notice was altogether dissimilar to that of the contract in Wight v. Hopetoun, it follows quite legitimately that the last term or last “determination of the tenancy” is to be taken as the term to which notice is referred in accordance with the policy and intention of the statute.
I have only to add that in my apprehension this is a very unfavourable case for maintaining the argument that the notice ought to have relation to the Whitsunday entry, because not only is the tenant to remain six months longer in possession of the arable lands, but, as I have shown, he is to have possession of a substantial part of the subject for a whole year subsequent to his surrender of the house and pasture, which accordingly cannot in any real sense be regarded as the termination or determination of his right under the contract of location.
The
The Court adhered.
Counsel for the Complainer — Comrie Thomson — Salvesen. Agents— H. & H. Tod, W.S.
Counsel for the Respondent— Sol.-Gen. Asher, Q.C.— Dickson — Cook. Agents— Pringle, Dallas, & Co., W.S.