Scottish Court of Session Decisions

Subject_1 REMOVING.
Subject_2 SECT. III.

Warning, in what Cases necessary. - How to be executed.

Andrew Wauchope of Niddery
v.
Archibald Hope

Date: 15 December 1767
Case No. No 88.

The act 1555, with regard to warnings, does not apply to coal-works. See No 55. p. 13820.

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Mr Hope having acquired right to a tack of the coal of Niddery, which expired at Martinmas 1767, Mr Wauchope, in spring that year, executed a warning against him, and brought a process of removing; but the warning having been informal, Mr Hope was assoilzied. Mr Wauchope having brought another process of removing in October, not founded upon the warning, “The Sheriff sustained the defence pleaded for Mr Hope, of the pursuer's having neglected to take the proper steps for getting him removed, either in terms of the act of Parliament, or act of sederunt, and assoilzied.”

Mr Wauchope presented a bill of advocation, which, with the answers, was taken to report by the Lord Ordinary.

Pleaded for the pursuer; That the act 1555 only applies to rural subjects. Prior to the act, removing from lands were very summary. The proprietor broke a wooden spear before the tenant's door, and told him he was to remove. This might have been done upon the term-day, and followed by a brevi. manu; ejection which often have brought great distress and inconvenience to tenants of lands. It was to obviate this that the statute was enacted. Hence, the statute has been considered by all the writers on our law as respecting rural subjects only; Craig, L.2. D.9. § 18.; M'Kenzie's observations; Stair, B. 2. T. 1.9. § 39. and 42.; and Lord Bankton, v. 2. p. 110. It is also upon this construction of the statute that it has been found not to apply to removings from towers and fortalices, Lady Salton contra Livingston, quoted by Lord Stair, from soap-works, (See Appendix.); November 21. 1671, Riddel contra Zinzan, No 67. p. 13828. from houses in the country; 11th March 1756, D. of Queensberry contra Telfer, No 85. p. 13843; 19th December 1758, Lunden contra Hamilton, No 86. p. 13845; and there is one case mentioned by Lord Stair, B. 2. Tit. 9. § 38. where it was found not to apply to a coal-work; Laird of Woolmot contra Niddery, (See Appendix.) Indeed there seems less reason for extending it to coal-works than any of the other cases. Tenants of houses may be put to very great inconveniencies by being removed or ejected without a warning. In soap-works, the tenant may have quantities of soap and materials on hand, with a store of casks, and other utensils, so that it may be a very great hardship upon him to be removed, when unprovided of a place whither he may transport these, and have them safely lodged. But, in a coal-work, not only the machinery, but even the persons who work at the coal, belong to the proprietor of the coal; so that the tacksman has nothing to remove. He has only to desist from working the coal.

Answered for Mr Hope; The statute is quite general, and requires warning, according to the forms therein prescribed, against the tenants of all possessions whatsomever. As there can be no doubt that coal-works are comprehended under the words, so they seem likewise to fall under the meaning of the statute. The purpose of requiring these formalities in warnings, was to prevent the inconveniences to tacksmen of every kind, by being obliged to quit precipitantly the subjects of their several tacks. The tacksmen of coal-works, besides the bound coalliers, must have a number of other servants, and houses for their servants, as is the case with the defender. The inconveniencies meant to be obviated by the statute, therefore, must affect the tacksman of coal-works as much as the lessees of any subject whatever.

The pursuer alleges the statute ought to be confined to rural subjects. If by these is meant subjects connected with land which require the labour and industry of men to be bestowed upon them, and produce a succession of fructus naturales, a coal-work must be allowed to be a rural subject as much as any. If by a rural subject is meant what is called a farm, this is directly in the face of the satute, which expressly mentions mills and fishings. In any view, a coal-work is as much a rural subject as any of these.

The defender's construction of the statute is confirmed by the universal sense of the country. It will not be denied that it is the invariable practice to use warnings in the form prescribed by the statute against the tacksman of coal.

None of the decisions quoted for the pursuer are strictly analogous to the present, except that of Woolmet contra Niddery, which appears to have proceeded upon a wrong ratio decidendi. Hope, by whom it is collected, says, “It was so found, because, in coal-works, no terms are considered, but the fruits are reaped daily.” This would apply equally to the case of mills; as to which, however, there is no doubt that a warning is necessary. It is submitted, therefore, whether the authority of this single decision ought to have more weight than the words of the statute, and the sense of the country with regard to its meaning, appearing from the universal practice.

The Court were of opinion, that the statute did not take place in removings from coal-works, and that no more was necessary than to give timely notice, which had been done in this case.

“They remitted to the Sheriff to decern in the removing.”

Act. Rat, Alt. Sol. Dundas. Fol. Dic. v. 4. p. 223. Fac. Col. No 69. p. 221.