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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell's Trustees v. O'Neill [1910] ScotLR 115 (30 November 1910)
URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0115.html
Cite as: [1910] SLR 115, [1910] ScotLR 115
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SCOTTISH_SLR_Court_of_Session
Page: 115↓
Court of Session Inner House First Division.
[Sheriff Court at Oban.
v.
Removing — Notice of Termination of Tenancy — Validity of Notice — Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 37, and First Schedule, Rule 112, Form J — Removal Terms (Scotland) Act 1886 (49 and 50 Vict. cap. 50), sec. 4.
Facts:
The Sheriff Courts (Scotland) Act 1907, sec. 37, enacts—“In all cases where houses, with or without lands attached, not exceeding 2 acres in extent … are let for a year or more, notice of termination of tenancy shall be given in writing to the tenant by or on behalf of the proprietor, or to the proprietor by or on behalf of the tenant: Provided always that notice under this section shall not warrant summary ejection from the subjects let to a tenant, but such notice, whether given to or by or on behalf of the tenant, shall entitle the proprietor to apply to the Sheriff for a warrant for summary ejection in common form against the tenant and everyone deriving right from him.…”
The Judicature Act, sec. 44, enacts — “When any judgment shall be pronounced by an inferior court, ordaining a tenant to remove from the possession of lands or houses, the tenant shall not be entitled to apply [as previously provided] by bill of advocation to be passed at once, but only by means of suspension. …”
In an application for a warrant for summary ejection of a tenant to whom notice of the termination of his tenancy had been duly given, the Sheriff-Substitute, after proof, granted decree as craved, and on appeal the Sheriff adhered. The defenders having appealed, the pursuers objected to the competency of the appeal.
Held that as the Sheriff Courts (Scotland) Act 1907 had left unrepealed section 44 of the Judicature Act 1825, decrees in actions of removing, which this in reality was, could only be reviewed by suspension, and the appeal was therefore incompetent and must be dismissed.
The Sheriff Courts (Scotland) Act 1907, sec. 37, enacts—“In all cases where houses, with or without land attached, not exceeding 2 acres in extent, … are let for a year or more, notice of termination of tenancy shall be given in writing to the tenant by or on behalf of the proprietor, or to the proprietor by or on behalf of the tenant, …: Provided that the notice provided for
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by this section shall be given at least forty days before the fifteenth day of May, when the termination of the tenancy is the term of Whitsunday, and at least forty days before the eleventh day of November when the termination of the tenancy is the term of Martinmas.” Rule 112 of the First Schedule enacts—“Notices under section 37 of this Act shall be as nearly as may be in the Form J hereto annexed. …”
Form J is — “You are required to remove from … at the term of Whitsunday [ insert year] [or Martinmas, as the case may be, inserting after the year the words, being the 15th day of May or the 11th day of November, or the 28 th day of May or the 28 th day of November, as the case may be].”
Held ( diss. Lord Johnston) that a notice of removal given to a tenant under section 37 of the Sheriff Courts (Scotland) Act 1907, forty days before 15th May 1910, requiring him to remove “at the term of Whitsunday 1910,” but which did not specify that Whitsunday meant the 28th and not the 15th of May, was a good notice, no special paction between the tenant and the proprietor with regard to notice of removal being averred.
The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 37, First Schedule, Rule 112, and Form J, and the Court of Session Act (Judicature Act) 1825 (6 Geo. IV, cap. 120), sec. 44, are quoted supra in rubrics.
On 2nd June 1910 Richard Watson and another, trustees of the late Dr Campbell, Oban, brought an action in the Sheriff Court there against Francis O'Neill, draper and clothier, 4 Argyll Square, Oban, in which they craved the Court “to grant warrant … summarily to eject the defender” from the said premises. The pursuers' complaint, as stated in the initial writ, was that though the defender's occupancy had expired at Whitsunday 1910, and though he had, in terms of section 37 of the Sheriff Courts (Scotland) Act 1907, been duly warned to remove, he had refused to do so.
The notice of removal served upon the defender was as follows:—“Sir, you are required to remove from the shop 4 Argyll Square, Oban, presently tenanted by you, at the term of Whitsunday 1910.”
O'Neill lodged defences, in which he averred that he was by agreement, subsequently incorporated in a missive signed by him entitled to six months' notice of the termination of his tenancy.
He pleaded—“(1) The action is incompetent. (2) The defender not having got the notice contracted for, should be assoilzied.”
On 30th July 1910 the Sheriff-Substitute ( Wallace) repelled the defender's first plea-in-law, allowed him to instantly verify his defence, and appointed a diet of proof.
A proof having been taken, the Sheriff Substitute on 25th August 1910 found that the defender had failed to prove that any such notice had been stipulated for, and granted decree as craved.
The defender appealed to the Sheriff ( M'Clure), who on 24th September 1910 adhered.
The defender appealed.
The respondents objected to the competency of the appeal, and argued — (1) On the Competency — The present action, though described in section 37 of the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), as an action of “summary ejection,” was in its essence an action of removing. Decrees in such actions were only reviewable by suspension—Judicature Act 1825 (6 Geo. IV, c. 120), sec. 44 — and this appeal therefore was incompetent. Prior to the Act of 1907 the merits in such actions were discussed in the action of removing raised forty days before the termination of the tenancy, the decree obtained therein if not implemented being followed by a warrant or precept of ejection, as described by Lord Curriehill in Hally v. Lang, June 26, 1867, 5 Macph. 951, at p. 954, 4 S.L.R. 146. Such warrants or precepts were purely ancillary processes, and were the appropriate legal diligence for enforcing the decree. The Act of 1907 had reversed the order of procedure, for the notice of removal now took the place of the action of removing, leaving the merits to be discussed in the so called “summary ejection.” The summary ejection, therefore, of section 37 was in substance if not in name an action of removing in the sense of the Judicature Act 1825, sec. 44. Esto that prior to the Act of 1907 appeals in actions of ejection had been entertained, these appeals were in processes of ejection properly so called, viz., the summary ejection of a squatter or a person possessing without a title. Such processes were entirely different from the separate and independent action of removing applicable to the case of a tenant at the due termination of his tenancy. (2) On the Merits — ( a) The procedure in the Sheriff Court had been in accordance with the statute. This was a “summary application” in the sense of section 3 ( p) of the Act of 1907, and the procedure prescribed by section 50 for such applications had been duly complied with. ( b) The notice was in proper form, for the Act did not provide that notices not strictly in the form prescribed should be invalid. The notice given was not ambiguous, for where a tenant's term of removal from a house or shop was Whitsunday that meant the 28th of May — Removal Terms (Scotland) Act 1886 (49 and 50 Vict., c. 50), sec. 4. ( c) The appellant had failed to prove that he was entitled to six months' notice.
Argued for appellant—(1) On the Competency of the Appeal—The appeal was clearly competent. Esto that prior to 1907 this appeal would have been incompetent, that Act had altered the procedure as regards review, for sec. 37 allowed a landlord to apply for warrant of summary ejection “in common form,” and if he chose to proceed by initial writ he must take the consequences, one of which was
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that an appeal was thereby rendered competent—Act of 1907, secs. 27 and 28. (2) On the Merits—( a) The procedure in the Sheriff Court had been wrong, for the Sheriff-Substitute had followed that applicable to sec. 38, which related to cases where the let was for a period less than a year— vide Rules of Procedure in First Schedule to the Act, rules 115–122. That being so the Court could interfere even although the appeal were incompetent. ( b) The notice of removal was not in the statutory form, viz., Form J, appended to the Act of 1907, and therefore the whole proceedings following thereon were inept — Johnston v. Pettigrew, June 16, 1865, 3 Macph. 954; Somerville v. Kinnaird, December 18, 1905, 8 F. 335, 43 S.L.R. 337; Brown v. Kinnaird, December 18, 1905, 8 F. 340, 43 S.L.R. 340. ( c) The evidence showed that the appellant was entitled to six months' notice, and this he had not received. At advising—
At the date of the Act there was such a thing known as a warrant for summary ejection. But it had nothing to do with tenants. Its purpose was to eject those who were possessing without title — vi, clam, aut precario. It was a substantive action, in no way accessory to any other proceeding, and it was essentially summary, for it proceeded without forty days' or any other notice. But the application for it and the warrant following thereon may properly be said to be “common form.” I do not, however, think that there is any other warrant for summary ejection or any application for such which could be so described.
Now the awkwardness created by this loose use of language is that by the Judicature Act (6 Geo. IV, cap. 120), sec. 44, a decree of removing is not subject to advocation, now appeal, but only to suspension, with its accompanying requirements of caution, &c., whereas a decree of summary ejection is open to appeal — Robb v. Brearton, 22 R. 885, following on the cases of Fletcher, 2 R. 71; Clark, 17 R. 1064; and Barbour, 18 R. 610.
In the present case an application in the form of an initial writ, under the Act of 1907, was presented to the Sheriff-Substitute at Oban, craving him summarily to eject the defender from certain premises there, the rent of which was £80. The Sheriff-Substitute evolved a course of procedure for himself, and ultimately granted decree as craved, and the Sheriff adhered. The defender has appealed. There is no difficulty as to the value of the cause. But the primary question is, whether the defender's appeal is competent, or whether his only remedy was not a suspension.
I do not think that the question can be properly dealt with without consideration of the history of process in this matter.
The Act of 1555, cap. 12, for the first time regularised removings, though it was applicable only to the removing of properly agricultural tenants. The essentials were a forty days' warning to the tenant, which has remained the period of notice to this day. Failing the tenant obeying the warning, on production of an execution thereof either to the Court of Session or to the Sheriff, the landlord might obtain a decerniture to remove, with certification
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The Act of Sederunt of 14th December 1756, section 2, introduced a less elaborate procedure, privative to the Sheriff, as an alternative for that of the Act of 1555. The service of an action of removing forty days before Whitsunday was made the equivalent of the warning provided by the Act 1555, and the Sheriff was directed thereupon to proceed and determine in the removing in terms of that Act. The form of an application under this Act of Sederunt simply craves the Sheriff—for as I have said, procedure under the Act of Sederunt was confined to the Sheriff Court—to ordain the defender to flit and remove, etc., “and that under the pain of ejection”—Lees, Sheriff Court Styles, 342. And the extract decree, even in the abridged form of the Act of Sederunt 27th January 1830, Schedule C, shows what these words involved. After the decerniture to remove, and the direction to officers to charge under pain of ejection, the extract proceeds:—“Wherein, if the defender fail, that the said officers eject, remove, and put forth the said … defender, his family, and others aforesaid-furth and from the foresaid … and pertinents possessed by him, and keep, hold, and detain them furth thereof, and enter and possess the pursuer, or others in his name, therein, and maintain, uphold, and defend them in the peaceable possession thereof, and to cause inventory the hail goods and gear so to be ejected; and, if needful, to make gates and doors, and other lockfast places, open and patent, and use His Majesty's keys for that effect, and that in terms of the Act of Sederunt libelled, and laws and daily practice of Scotland used and observed in the like cases in all points.” Now since the Sheriff Courts Extracts Act of 1892 (55 and 56 Vict. cap. 17), the extract which is made, section 14, the equivalent of the older form — itself as I have said, an abridgement — is simplified thus—“And the Sheriff grants warrant for all lawful execution herein by ejection at the terms or period (or the respective terms) of removal, if a charge of forty-eight hours be given prior thereto, or forty-eight hours after a charge thereafter.” There is thus no separate warrant for ejection, and therefore no separate application for it required, or in use, and so far as I can ascertain there never has been in removings as these have been conducted in the Sheriff Court, and therefore none to which the term “common form” could be applied.
The only cases in which a separate application for ejection could be made to the Sheriff Court were, first, where proceedings for removing have been taken under the Act 1555 in the Court of Session, and the pursuer preferred to apply direct to the Sheriff, in place of taking out letters of ejection; and, second, where the conclusion for removing is merely ancillary to a declarator of some right in the Court of Session, in which case the intervention of the Sheriff is called for and may be obtained just as in the removing under the Act of 1555. This latter is still a possible though unfrequent case, and is, and I think has been, for much more than a century, the only case in which a separate application has been made to the Sheriff for ejection of a tenant, or one who had a right of possession though expired. Such ejections have not been regarded as falling under the category of summary ejections in the Sheriff Court. The difference between them and summary ejections is that as they are merely accessory and executorial, no proceedings of a judicial character under them are called for or indeed possible. The Sheriff acts merely as the hand or officer of the Superior Court, very much as an officer executing a diligence. His only concern is the authenticity of his warrant. The fact of an application in writing to move the Sheriff being in use to be lodged in the rare cases in which this form of ejection is necessary is a mere matter of convenience. There is no reason why the Sheriff, on presentation to him of an extract of the Court of Session judgment, should not sign a warrant to eject endorsed on the extract or otherwise referring to it. Summary ejection, on the other hand, is a substantive proceeding, which is not ancillary to a removing, and is applicable in totally different circumstances. Such ejections, as I have shown, are truly summary in this sense, that they proceed without any initial warning. But they are not applications which can be granted de piano. They rest on no warrant of a Superior Court. However summary the procedure may be, the party defender cannot be disposed of without the opportunity of opposing and stating his defence, if any, and having it dealt with. The proceeding is not executorial merely, but of the nature of an action, be
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Turning back now to the 37th section of the Sheriff Courts Act 1907, the meaning of the provision that the notice in writing shall not warrant summary ejection is, I think, plain. If the notice is to take the place of the action of removing, qua its conclusions for removing, it would, according to practice, be in itself a warrant to eject. It was impossible that this private action of the landlord should be such, and accordingly what section 37 of the Act really effects is to provide a summary mode of commencing an action of removing, which with confusing inaccuracy it terms an application for a warrant for summary ejection. Let the initial procedure be shortened and simplified as much as may be, this is still a removing in fact. The pursuer will not get a warrant as merely executorial of his notice. Nor will he get his warrant as in a proceeding for summary ejection. He must establish his right to remove, and meet defences against removing as in a removing, not in a summary ejection. His action will get the summary expedition which all actions of removing get, at least in theory. But the defender is ex hypothesi not one without a title to possess, and he must be allowed the same opportunities to state his defence against removing as he would have had under the former procedure. It is a pity that the Act should have used the misleading term “summary ejection” for what is really a summary removing. But if the process be one truly of removing of a person with a title to possess and not an ejection of a squatter, whatever terms the statute may use, I think that we must look to the essence and not to the form, and must hold that the restriction of the Judicature Act 1825, section 44, limiting review to suspension, holds, and that the appeal is incompetent.
As regards the procedure which the Sheriff-Substitute adopted, I cannot say that I find anything unreasonable in it. He does not get much help either from the statute or its relative rules. But with one exception I see nothing to object to in the course which he has taken. I would, however, say that I think at 30th July 1910 the Sheriff-Substitute erred in allowing the defender instantly to verify his defence, and for that purpose assigning him a diet of proof. A defence is not instantly verified which requires proof. If proof is required, that should only have been allowed on caution for violent profits. Then the possible injustice of a hurried proof for the purpose of instantly verifying a defence would have been avoided. This is, I think, material in the matter of procedure. But it does not involve any illegality which would make an appeal a competent remedy.
But there is another point which was argued, and which from one point of view requires consideration, notwithstanding the reasons which I have advanced for holding the 44th section of the Judicature Act 1825 to be applicable to the new statutory process of removing. It was maintained that the removing or ejection was without warrant, because the notice of 31st March which preceded the action was ineffectual. It simply requires the defender to remove at the term of Whitsunday 1910, and does not specify whether the removal term in the case in question is 15th May or 28th May. It is true that the Removal Terms (Scotland) Act 1886 (section 4) provides that a Whitsunday ish shall import obligation to remove at noon on 28th May. But that is only “in the absence of express stipulation to the contrary.” Hence the schedule form J appended to the statutory rules of procedure, if followed, requires the insertion after the word “Whitsunday” of the words “being the 15th day of May” or “the 28th day of May,” as the case may be. Without these explanatory words the notice is, in my opinion, indefinite and therefore bad. And I cannot explain away their absence as the Sheriffs do by assuming that the words in rule 112, “as nearly as may be in the form J,” sanction the laxity.
If, then, the notice was bad, there is ground for review, but I do not think that this class of objection warrants an appeal in place of a suspension. The case is distinguishable from Clark ( 17 R. 1064), and Barbour ( 18 R. 610).
On the merits of the question, to which the proof was directed, were it necessary for the disposal of the case, I should agree with what I understand to be your Lordships' opinion that the defender has failed to establish his defence. But I think that the proper course is to dismiss the appeal as incompetent.
I think it is impossible to read the 37th section of the Act in such a way as to make the words really fit the state of the law as it existed at the time of the Act in respect of removings, and I concur entirely in the very careful inquiry that has just been made by my brother Lord Johnston dealing with the various kinds of removings and ejections that were possible under the older law. But while I am unable to think that the draughtsman of section 37 had really before him the precise state of the law as it has been explained by my brother, I think at the same time, as is often the case, it is not very difficult to get at the general idea which was underlying the draughtsmanship of section 37, and I think in these cases it is our duty, however inaccurate in terms we may find the Act, to give effect to what we consider the spirit, so long of course as the words used do not absolutely preclude us from so doing.
Now, put in general and untechnical language, what I think the idea of section 37 was, was this—Hitherto where you were
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Well of course under the old law you could join issue upon what I may call the merits in the action of removing. If those merits were once determined it was impossible to raise them again in the process of ejection, which was a mere sequel to what had already been done. And that was equally the case whether chapter one, as I call it, had happened in the Court of Session or in the Sheriff Court. There could be three positions so far as an ejection was concerned. They have all been detailed by Lord Johnston, and I merely repeat them again for clearness. There was the case where the removing itself was in the Sheriff Court, and there, if decree were got, ejection followed as a matter of course always. There was next the case where you had got decree in an action of removing in the Court of Session, possible but utterly obsolete for well over one hundred and fifty years, because of the extreme difficulties of the particular class of notice that you had to give under the old Act of 1555. And there was the third class, no doubt rare but not unknown, because I remember a case in my own practice where an action of declarator of removing was brought in the Court of Session against a person who was really a squatter, but where though decree was got there were no operative conclusions for turning the person out, and you had to go to the Sheriff Court to get the operative decree in the ejection. Well, those are the three cases, and they exhaust the whole category of ejections exclusive of the summary ejection of a squatter.
Now in each and all of those cases the merits were discussed, if there were any merits, in the action of removing or declarator. By the change that is here made—for of course there must be an opportunity of discussing the merits—it is absolutely necessary that their discussion should be allowed in what is here called the petition for ejection in common form. That is a change from the old law, where what was done was merely something ancillary to something that went before, and where no discussion on the merits could therefore be allowed. That is the whole meaning of section 37—simply to cut out the action of removing, substitute the mere notice, and then allow the objections to be stated in the ejection instead of in the removing. I agree with Lord
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Accordingly I think here that the appeal is incompetent, and ought to be dismissed. But one or two matters were argued upon which I think it is necessary to say something.
Now the bottom of the whole matter is, of course, the notice. As to that I differ from my brother Lord Johnston. I think here the notice was a good notice, and I think that the Sheriff-Principal has put the matter upon the proper grounds. The Act says that notice to remove may be in this Form J, but there is no absolute sanction of that particular form, though if any real prejudice was done to a person who got a notice in a different form, then I think we should hold it was a bad notice. But I cannot hold that this is a bad notice here, because it being undoubtedly given forty days before the earlier term, I mean the 15th May, the recipient is not in any way hurt when it is not explained to him that Whitsunday means on this occasion the 28th May rather than the 15th, because the Act of Parliament says it for him, and he cannot be turned out before the 28th. It would be a different thing if, by special paction between him and the proprietor, he had agreed, notwithstanding the Act of Parliament, to turn out upon the 15th. Then I think it might very well be that a notice at Whitsunday generally would be a bad notice, because then the proposal would be to turn out on the earlier date. But inasmuch as here it is not proposed to turn the tenant out until the later date, I do not see that he has suffered any prejudice, and therefore I think it is a good notice.
Well, now, the next point that was raised was this. It was said here that the Sheriff had taken the wrong procedure, in respect that he had not gone on with an ejection in common form, but had really followed the forms of procedure which are laid down in connection with the summary removing under section 38, which are really summary removings for houses or heritable subjects let for under a year. Now there is no doubt that if one looks at the interlocutors in this case one is driven to the conclusion that as a matter of fact the Sheriff has copied the forms which are given in the Act in connection with the summary removings dealt with under section 38. I cannot escape that conclusion. But there again it does not seem to me to vitiate the matter, because, as has already been pointed out by my learned brother Lord Johnston, summary ejection in common form is not a nomen juris at all. You are not helped by that; and therefore it practically comes to be this, that you are told
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Now I think that really left the Sheriff master of the situation, whether he should treat this as an ordinary petition, or whether he should treat it—as he has done—as a summary application. I do not think it would have been wrong if he had proceeded to make up a record in the ordinary way. The initial writ as it stands would, of course, square with either method of procedure afterwards, and if the Sheriff had proceeded in the ordinary way—that is to say, the ordinary way which is followed upon an initial writ in an ordinary action in the Sheriff Court—I should not have held that he was wrong. But on the other hand I as little hold it wrong that he did what he did.
I say this because it was very strenuously argued by the counsel for the appellant here that he had been badly prejudiced by not having his case made up in the ordinary way. Well, I cannot see that he suffered any prejudice at all. If I had thought that, in looking at the proof and in looking at the way the defence was brought out, any prejudice was put upon him in stating his defence, I should have come to an opposite conclusion. But I think here there was no prejudice, and although I am inclined to think the more correct method would have been to have proceeded in the other way, I do not think for a moment that that can vitiate the whole proceeding. I think here the defender had an opportunity of stating every defence which he had, and that it made no difference whatsoever that that defence was not stated by way of condescendence and answers, but was stated in the summary form in which it was. I will go further and say—although, of course, it is not necessary for the determination of the case—that I am absolutely satisfied that this defence is made merely to gain time, and that there is no substance in it whatsoever.
The judgment of the Court, I think, however ought to be that this appeal is incompetent, and that the matter ought to have been raised by suspension.
In that case the question was whether the method prescribed for completing a real right in an easier and cheaper form than had been formerly necessary had been properly followed. An Act of Parliament allowed registration of a disposition in the register of sasines upon a warrant for registration if presented in a certain form. The Court held that a warrant for registration that did not comply with the directions of the statute prescribing the form was ineffectual. But then they explained—I think very clearly — that the question before them was whether there was any substantial departure from the form prescribed by the statute, or whether, the form being substantially correct, there had been merely a trivial and literal deviation from it.
The ground of judgment is, I think, very clearly explained by the Lord Justice-Clerk (the late Lord President Inglis), and he says that if the statute dispenses with formalities which are found to be cumbrous and expensive, and allows the lieges to attain the same object by a cheaper and a simpler method, provided they follow a certain prescribed procedure, they must follow that procedure in all essential matters or lose the benefit of the statute. But then he said if the departure from the prescribed method is merely trivial, that may be of no consequence; and therefore you must consider whether the method actually followed serves the purpose for which method is prescribed at all.
Now in that statute the purpose of prescribing the method was that people dealing with property on the faith of the records should be able to see who the person was who was infeft in such property. And the Lord Justice-Clerk points out that if you register upon a warrant in favour of somebody who is not designed you give no information as to who the person infeft really is. The warrant in that case was in favour of A B without designation, and therefore the warrant was not good.
Applying the same principle to the present case, I think the learned Sheriff was quite right in considering whether any possible prejudice could accrue to the defender from the failure of a notice to inform him that the term of Whitsunday, upon which he was to be removed, was the 28th May. I think that the Sheriff was perfectly right in saying that he could suffer no prejudice, because he knew perfectly well (and he had an Act of Parliament to decide it for him) that the term of Whitsunday to which the notice referred was the 28th of May and not the 15th. Neither party had given or accepted notice of removal for the 15th, and therefore the omission of the words “28th May” was unimportant. It may very well be, as the Lord President has pointed out, that a similiar omission in other circumstances might lead to a totally different result. But in this particular
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The Lords sustained the objection and dismissed the appeal as incompetent.
Counsel for Pursuers (Respondents) — Wilson, K.C. — Macgregor. Agents — Morton, Smart, Macdonald, & Prosser, W.S.
Counsel for Defender (Appellant)— Morison, K.C.— Paton. Agents— Gill & Pringle, W.S.