Scottish Court of Session Decisions

This was an action of suspension and interdict at the instance of James Hood, scale-beam manufacturer, 3 Macdowall Street, Edinburgh, against the North British Railway Company, under circumstances which are sufficiently detailed in the Lord Ordinary's opinion, infra.

On 6th December 1895 the Lord Ordinary ( Moncreiff) refused the prayer of the note.

Opinion.—“I do not think that there is any serious doubt as to the facts of this case. I am satisfied that on 28th February 1895 the complainer, who was a yearly tenant of premises at No. 3 Macdowall Street, Edinburgh, was distinctly told by his landlord Mr William MacLachlan that he would have to remove from the premises at Whitsunday, as the respondents the North British Railway Company were then to enter into possession of them, and that the complainer distinctly understood this and acted upon it by taking other premises in Victoria Street. Mr MacLachlan candidly admits that on 28th February he did not go to the complainer's premises for the purpose of giving him warning; and he also admits that notwithstanding what passed on that occasion he intended that the complainer should receive a peacewarning at the proper time along with other yearly tenants. By some mistake the complainer's name was omitted from the list of yearly tenants; and it was upon finding that he did not receive a peacewarning that the complainer adopted his present attitude. He was under no mistake as to what was intended. He knew that every other tenant in the tenement had been warned out, and that the omission, if omission there was, must have been accidental. The subjects were long ago removed, and therefore the present proceedings are being insisted in solely with a view to ultimately obtaining compensation from the respondents, which otherwise, being a yearly tenant, he could not have obtained. But of course if he was not properly warned out he is within his rights

In the case of urban subjects a formal warning or formal notice on either side is unnecessary. It has been held sufficient that intimation was verbally made to the tenant forty days before the term that he was to remove at the term, and that he acknowledged and acted upon the information. The old case of Tait v. Sligo, M. 13, 864, is a case in point, and the recent case of Gilchrist v. Westren, June 24, 1890, 17 R. 363, is a strong authority to the same effect in the converse case of notice being given by the tenant. The latter case is peculiarly in point, because the notice given by the tenant that he intended to leave at the term, which was held to be sufficient, was made in the course of conversation with the landlord's factor. The tenant did not go to the factor's office with the intention of giving notice, but in the course of conversation he intimated to the factor that he would quit the premises at Whitsunday 1889 unless he received intimation that a reduced rent would be accepted. He received no such intimation, and he was held at liberty to go. The Court, proceeding on the circumstances of the case, held that the notice given was timeous and sufficient. The only difficulty in the present case

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arises from the fact that Mr MacLachlan intended to give the complainer formal warning; and that affords ground for the observation that he did not regard what passed on 28th February as a final warning.

But I do not think that the complainer can avail himself of this. The question is was the warning given such that the complainer was entitled to act upon it? Now the intimation which he received on the 28th February was such that had it been the landlord's interest, and had he tried to hold the complainer to his tenancy, he would at once have been successfully met by the defence that he had himself given intimation, and that on the faith of it the tenant had taken other premises. If, then, the notice given on 28th February was sufficient, the landlord was not bound to give, neither was the complainer entitled to receive further notice; and the fact that the landlord intended to peacewarn the complainer is only of importance in testing the credibility of the evidence which he gives as to what passed on 28th February. It would be unfortunate if the law could not give effect to the good faith of the case. I do not think I am straining it in holding that the intimation given on 28th February 1895, and acted on by the complainer, was timeous and sufficient.”