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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v. Livingstone and Another [1918] ScotLR 1 (19 October 1918) URL: http://www.bailii.org/scot/cases/ScotCS/1918/56SLR0001.html Cite as: [1918] ScotLR 1, [1918] SLR 1 |
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[Sheriff Court at Kirkcudbright.
A tenant who occupied under a yearly tenancy from a farmer a cottage on the farm, with garden, byre, and a field of five acres, received from him notice to remove in the following terms:—“I beg to serve formal notice to quit at Whitsunday (28th May) 1918, as I shall be requiring the cottage for an employee.” In an action of removal following thereon, held that the letter in question did not comply with the Sheriff Courts (Scotland) Act 1907 in respect that it did not sufficiently describe the subjects.
The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 36, enacts—“ Notice to Remove.—Where lands exceeding two acres in extent are occupied by a tenant without any written lease and the tenant has given to the proprietor or his agent no letter of removal, the lease shall terminate on written notice being given to the tenant by or on behalf of the proprietor … not less than six months before the determination of the tenancy, and such notice shall entitle the proprietor in the event of the tenant failing to remove to apply for and obtain a summary warrant of ejection against the tenant and everyone deriving right from him.”
The First Schedule, Rule 111, enacts—“ Form of Notice of Removal.—Notices under sections 34, 35, and 36 of this Act shall be as nearly as may be in the Form H annexed hereto. …” Form H is in the following terms “To [ name, designation, and address of party in possession]. You are required to remove from [ describe subjects] at the term of [ or if different terms, state them and the subjects to whick they apply] in terms of lease [ describe it] or [ in terms of your letter of removal of date] or [ otherwise as case may be.].”
John Scott, farmer, Drumhumphrey, Dalbeattie, pursuer, brought an action in the Sheriff Court at Kirkcudbright against Mrs Janet Livingstone, residing in a cottage at Drumhumphrey, wife of John Livingstone, and against John Livingstone as her curator and administrator-in-law, defenders, in which he craved the Court summarily to eject the defender Mrs Livingstone and her family “from the cottage and garden, byre, and field of five acres or thereby occupied by her on the farm of Drumhumphrey.”
In November 1917 the defender received from the pursuer a letter in the following terms:—“Drumhumphrey, Corsock, Dalbeattie, 7th November 1917. Mrs Livingstone. Dear Madam,—I beg to serve formal notice to quit at Whitsunday (28th May) 1918 as I shall be requiring the cottage for an employee. Yours truly, (Sgd.) J. Scott.”
The pursuer averred that the defender Mrs Livingstone accepted the letter “as formal notice of removal and acted upon it as such, and soon afterwards took a house at Kirkmahoe for the year from Whitsunday 1918, and so informed pursuer, … but on 17th April 1918 through her agents [she] intimated that she intended to remain.” …
The defender pleaded—“2. The pursuer's averments are irrelevant and insufficient to support the conclusions of the writ. 3. The defender being tenant of the subjects to Whitsunday 1918, and not having received notice in terms of law to remove therefrom, decree of absolvitor with expenses should be pronounced. 4. The letter, intimation, or notice founded upon by pursuer not having been made or given in the form and manner required by law, pursuer is not entitled to the warrant craved.”
On 21st June 1918 the Sheriff-Substitute ( Napier) sustained the defender's second,
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third, and fourth pleas-in-law and dismissed the action. The pursuer appealed to the Sheriff ( Morton), who on 21st August 1918 refused the appeal.
The pursuer appealed, and argued—The description of the subjects was sufficient. The rule must be interpreted reasonably. This was a transaction inter rusticos, and slavish adherence to the form was not intended. The entire subjects (cottage, field, and byre) were held as a unum quid, and the tenant must have understood that the whole was meant. The word “quit” in the letter must apply to something, and could only apply to the tenancy. The position of the word “cottage” in the letter was immaterial. In any event the tenant had suffered no prejudice— Campbell's Trustees v. O'Neill, 1911 S.C. 188, 48 S.L.R. 115. The tenant had acted on the assumption that the notice was good, and the pursuer was entitled to proof of those actings as barring the defenders from objecting to the notice.
Argued for the defenders—The description was insufficient. The Legislature had enacted certain definite rules as to removing, a strict compliance with which was required. The words of the section involved a peremptory direction that the statutory form should be followed unless there was something in the circumstances of the case which made modification necessary. If, however, proper statutory notice had not been given it was impossible for the appellant to make out a case on facts and circumstances short of express agreement— Gordon v. Bryden, 1803, Mor. 13,854; Blain v. Ferguson, 1840, 2 D. 546. In Campbell's Trustees v. O'Neill ( cit. sup.) there was a sufficient description of the subjects and specification of time. On the question of proof there was no relevant averment of facts in dispute.
These proceedings are intended to be summary proceedings. In a case to which the Sheriff-Substitute refers— Blain v. Ferguson, (1840) 2 D. 546—Lord Fullerton says—“In regard to a case of this kind I should fully agree in the opinion ascribed to the learned Judges in the report by Baron Hume in the case referred to in the last page of these papers, that after introducing, whether rightly or not, the rule requiring a formal warning, we should increase the risk of litigation, which it was intended to remove, by letting in facts and circumstances as supplying its place.” I think that is a very real danger and ought not to be allowed in practice. I am of opinion that the result arrived at by the Sheriff is correct.
I was at first very much impressed by the case of Campbell's Trustees v. O'Neill, 1911 S.C. 188, 48 S.L.R. 115, which Mr Leadbetter brought before us, but the circumstances there were very materially different from those we have here. In particular, the divergence from the form was not at all material, and might quite well have fallen within the words “as nearly as may be.” It is sufficient, in my judgment, to say that I think the present case differs in its circumstances materially from the case of Campbell's Trustees v. O'Neill, and I do not feel constrained in giving judgment in the present case to apply the opinion of the majority of the Court in Campbell's case to the case before us. I am therefore of opinion that the appeal fails, and that we should affirm the judgment of the Sheriff.
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I agree as to the technical nature of this objection. There were three objections stated. Two of them have disappeared but the third remains, namely, that the notice does not describe any subjects from which the defender is to remove. I cannot support that objection in its terms. But I think we may fairly hold that objection to include the question whether there is not a separable part of the subjects which is not described. I think there is, and that in that particular the statute has not been complied with, and therefore that the case falls under the decision in Blain v. Ferguson. Apart from the cottage and garden the notice gives no description of the five-acre field. If it were a question of whether the cottage included the garden I should be disposed to hold that it was a reasonable description of the garden. But the field is entirely separable and is not described at all.
The Court dismissed the appeal and affirmed the interlocutors of the Sheriff-Substitute and the Sheriff appealed against.
Counsel for the Pursuer and Appellant— Leadbetter. Agents— Webster, Will, & Company, W.S.
Counsel for the Defenders and Respondents— Watt, K.C.— Mackenzie Stuart. Agents— Hagart & Burn Murdoch, W.S.