Scottish Court of Session Decisions

Robert Waddell, West Morham, East Lothian, brought a note of suspension and interdict in the Bill Chamber against (1) David Erskine Howat, Edinburgh, and Thomas Elder, farmer, Stevenson, Haddington, and (2) the Board of Agriculture for Scotland, to restrain the respondents from proceeding under or acting upon a nomination of arbiter by the Board under the Agricultural Holdings (Scotland) Act 1923 in a claim for compensation under that Act at the instance of the respondent Howat against the complainer.

The parties averred, inter alia—“(Stat. 1) The complainer Robert Waddell is the proprietor of the lands of Morham Mains, otherwise known as Morham Muir or West Morham, in East Lothian, conform to disposition by John Howatt, veterinary surgeon, Londonderry, and others, trustees acting under the trust-disposition and settlement of the late John Howatt, veterinary surgeon, Pollokshaws, dated 11th 14th, and 16th, and recorded in the Division of the General Register of Sasines for the county of East Lothian 21st November 1922. The respondent David Erskine Howat, who presently resides at 47 George IV Bridge, Edinburgh, was the tenant or occupier of the said lands of Morham Mains under an arrangement with the said trustees which came to an end at the term of Martinmas 1922, when by agreement dated 22nd, 26th, and 28th September and 5th October 1922 between him and the said trustees the said respondent renounced all rights of possession of the said farm and lands competent to him from and after the said term.… ( Ans. 1) Admitted under reference to the said disposition and agreement for their terms. (Stat. 2) The entry of the complainer Robert Waddell to the said lands of Morham Mains was at the term of Martinmas 1922, and following upon the termination of the occupation of the respondent David Erskine Howat at the said term he intimated a claim against the complainer under the Agricultural Holdings Acts for payment of the sum of £181, 12s. 1d. as compensation for unexhausted manures, &c. The complainer repudiated the claim, whereupon the said respondent applied to the Board of Agriculture for Scotland to appoint an arbiter to settle the differences which they alleged had arisen between the complainer and the said respondent as to the compensation payable under the Agricultural Holdings Acts, and the Board of Agriculture on 19th November 1923, notwithstanding that the complainer exhibited to them the disposition of the said lands in his favour, appointed the respondent Thomas Elder of Stevenson, Haddington, as such arbiter. ( Ans. 2) Admitted under reference to the said claim for its terms. Explained that the said claim was intimated to the complainer on or about 5th January 1923, at which date the complainer was landlord of the said holding within the meaning of the Agricultural Holdings Acts, and therefore the proper person to receive any claim made under the said Acts by the respondent. Further explained that by the said agreement between the respondent and the said John Howatt's trustees it was provided that the respondent should make all claims competent to him under the said Acts against the incoming occupier or owner, and that following thereon the articles of roup under which the complainer bought the said holding from the said trustees rovided ( sexto) that the purchaser should be bound to relieve the said trustees of all claims competent to the agricultural tenant in virtue of his tack, compensation under the Agricultural Holdings Act 1920, and for improvements, meliorations, or otherwise. Further explained that the complainer on receiving the said claim from the respondent intimated to the respondent on 9th January 1923 a counter-claim against the respondent for £500 as damages, and for compensation payable by the respondent to the complainer as the proprietor of the said holding at common law and under the Agricultural Holdings Acts, and required any arbitration which might take place between them in reference to the said holding and the said claim by the respondent to extend to the said counter-claim, (Stat. 3) There never was any privity of contract regarding the said lands between the complainer and the said David Erskine Howat, and the relation of landlord and tenant never existed between them. No rents were ever due or payable by the said David Erskine Howat to the complainer, and there is no claim at the instance of the said David Erskine Howat against the complainer which can form the subject of arbitration.… ( Ans. 3) Admitted that no rents were due or payable by the respondent to the complainer.… Quoad ultra denied. Explained under reference to Answer 2 that the complainer was landlord of the said holding at the time when the said claim was made, and that by intimating the said counter-claim the complainer admitted the competency of the respondent's said claim, and that all questions relating to the said claim fall to be dealt with by the said arbiter Thomas Elder.

Page: 403↓

The complainer pleaded—“The relation of landlord and tenant never having existed between the complainer and the respondent David Erskine Howat, the complainer is entitled to interdict and interim interdict as craved.”

The respondents pleaded, inter alia—“2. The determination of the validity of the said claim being a matter for the decision of the said arbiter, the note should not be passed. 3. The said claim being a competent and valid claim against the complainer the note should not be passed. 4. The complainer having admitted the competency of the said claim is barred from maintaining that the said claim is incompetent.”

On 6th February 1923 the Lord Ordinary on the Bills ( Murray) dismissed the note.

The complainer reclaimed.