Scottish Court of Session Decisions

The Act of Sederunt for regulating the form of process in Sheriff Courts, of 10th July 1839, sec. 137, provides—“In all cases which require extraordinary dispatch, and where the interest of the party might suffer by abiding the ordinary induciæ, application by summary petition may be made to the Sheriff, who on considering the petition may, if he see cause, order it to be served on the person complained of, and to be answered within such induciæ as the Sheriff in each case may think proper. And the procedure in such cases shall not abide the ordinary course of the court days, it being always competent to pronounce such interim order as the exigencies of the case require.”

On 3rd April 1906 William Jenkins, farmer, Gartcharron, Craignish, Argyllshire, tenant of the farm of Gartcharron under missive letters dated in March 1904 which provided for a lease for five years from Whitsunday 1904 with a break at Whitsunday 1907, brought an action against Colonel Gascoigne of Craignish Castle, the proprietor, in the Sheriff Court at Oban. He prayed the Court, inter alia—“( First) To remit to a person of skill to visit the farm and lands of Gartcharron in the parish of Craignish and County of Argyll, as occupied by the pursuer as tenant under the defender, and to inspect the fences thereof, and to report to the Court the condition thereof, and whether they are in a properly tenantable, habitable, and sufficient condition, and fit for the purposes of the said farm, and, if not, what repairs, alterations, and works are necessary to put the said fences into said condition, and thereafter to ordain the defender to make and execute such repairs, alterations, and works on said fences, at the sight and to the satisfaction of an inspector to be appointed by the Court or otherwise, or failing the defender doing so within such period as the Court shall appoint, to grant warrant to the pursuer to make and execute said repairs, alterations, and works, at the sight and to the satisfaction of said inspector, and on the cost thereof being ascertained to ordain the defender to pay the same to the pursuer, including the costs of said report, and the expenses incurred to and by said inspector in the premises.” Alternatively, the pursuer prayed the Court to ordain the defender to concur with him in entering into a reference to arbiters who should determine the question whether the defender had fulfilled his obligations with reference to said fences. There was a further prayer for damages in the event of its being found that the defender had failed to fulfil his said obligations.

The pursuer averred that at the date of the missive letters constituting the lease the fences were not in a tenantable condition owing to natural decay, that the proprietor was bound in terms thereof and at common law to put them in such a condition as at the term of Whitsunday 1904, that he had failed to do so and

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consequently the pursuer had suffered and continued to suffer loss and damage.

On 7th November 1906 the Sheriff-Substitute ( Maclachlan) dismissed the action, finding that the pursuer's tenancy was a continuance of his former tenancy, and that the clauses in the conditions of lease founded on did not apply and did not warrant the procedure craved.

The pursuer appealed to the Court of Session. Before the case came on for hearing the defender availed himself of the break in the lease to bring it to an end at Whitsunday 1907. At the hearing counsel for the pursuer stated that he insisted in the prayer of the petition only to the effect of asking for a remit to a man of skill.

Argued for the pursuer—The defender was bound to provide fences suitable to the farm and to put them into a tenantable condition. The state of the fences was a fugitive matter, and the pursuer was entitled to have a remit made to a man of skill to have their condition ascertained— Gordon's Trustees v. Melrose, June 25, 1870, 8 Macph. 906, 7 S.L.R. 574; Dickson v. Graham, May 12, 1877, 4 R. 717, 14 S.L.R. 471; Barclay v. Neilson, June 12, 1878, 5 R. 909, 15 S.L.R. 622; Davidson v. Macpherson, January 11, 1889, 30 S.L.R. 2, per Lord Justice-Clerk at p. 5; Magistrates of Kilmarnock v. Reid, January 22, 1897, 24 R. 388, per Lord President Robertson at p. 392, 34 S.L.R. 286. The pursuer had presented his case to the Court at the earliest opportunity and he should not be prejudiced either by the unavoidable delay which had taken place or by the fact that the defender had terminated the lease.

Argued for the defender—The proposed remit was incompetent— Sutherland v. Squair, February 25, 1898, 25 R. 656, 35 S.L.R. 512. If the defender had failed to fulfil his obligations the pursuer's remedy was an action of damages. If the pursuer wished to ascertain the condition of the fences he could have them examined by a man of skill on his own account. No doubt a remit was competent where it was desired to fix a fugitive state of facts. Here the important date was Whitsunday 1904, when the lease began to run. The application was thus three years too late— Baird v. Mount, July 3, 1874, 1 R. 1119, 11 S.L.R. 652.