Scottish Court of Session Decisions

The pursuer averred that by holograph letter dated 5th June 1895, written to him by Mr William Ormiston, acting on behalf of the defender, the defender offered to lease from him for a period of ten years a certain piece of ground at the annual rent of £60, and that by letter dated 7th June the pursuer accepted that offer. He

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further averred that thereafter the defender took possession of the ground in question, and that he refused to pay the first half-year's rent due at Martinmas 1895.

The defender averred that it was Mr Ormiston who had first brought the ground in question under his notice; that his main object in acquiring the ground was to build stables and an office; that Mr Ormiston was aware of that; and that the defender was led by him to believe that the granting of warrant for that purpose by the Dean of Guild would be a matter of routine. He admitted that in that belief he had taken possession of the ground to the extent of depositing debris thereon, but averred that when it appeared that there would be a difficulty in getting warrant he removed it again. He further averred that after he presented his application to the Dean of Guild Court, the Court on 25th July 1895 appointed all the conterminous proprietors to be called as respondents, and that the Dean of Guild process caused him serious expense.

The defender pleaded that there was no probative writ of lease; and, separatim, that there was never consensus in idem placitum between the parties.

In Mr Ormiston's letter to the pursuer of 5th June occurred the sentence—“The ground to be unrestricted as to the extent or character of the buildings, but no works causing nuisance to be carried on.”

Upon this record, which was closed on 21st February 1896, the case went to proof in the Sheriff Court on 22nd June 1896, and on 9th July the Sheriff-Substitute ( Hamilton) found the contract of lease proved, repelled the defences, and decerned against the defender.

The defender appealed to the Court of Session, and proposed to amend his record by adding the following answer;—“Admitted that the defender refuses to pay said rent. Reference is made to said process and correspondence for their terms, beyond which no admission is made. Explained that by the terms of the said pretended let to the defender of the land in question, it was an express condition that the said land should be unrestricted as to the extent or character of the buildings that might be erected thereon, except only in so far as works causing nuisance were concerned. The land in question consists of back ground behind Lonsdale Terrace, Chalmers Crescent, and Lauriston Gardens, including a strip running from Lauriston Gardens to said back ground, which constitutes the only access thereto. The pursuer has never given and now refuses to give the defender possession of the land alleged to have been leased to him in conformity with this express stipulation. The objectors who have appeared in the Dean of Guild Court object to the defender's proposed buildings on the ground that said land is subject to restriction. It is the fact, and the pursuer has admitted, that the said land is subject to rights of passage in favour of neighbouring proprietors, which rights extend across the land comprehended in the pretended let. Moreover, it is now averred by the proprietors on the north, and it is the case, that a part of the land in question, consisting of a strip along the entire northern boundary of the same, is their property, and they accordingly dispute the defender's unrestricted right to build on said ground in the Dean of Guild Court. Further, from the objections lodged by the said last-mentioned proprietors before the Dean of Guild Court, it now appears that the whole, or at least an essential part of the foresaid strip or narrow passage from Lauriston Gardens running along said proprietors' wall, being the defender's only access to the land in question, is not the pursuer's property; and if subject in virtue of prescriptive use to any rights of passage, it is at all events not subject to any servitude or private right-of-way for carts and horse traffic. The said land is further alleged by the said objectors to be subject to a variety of restrictions under the titles to the same and to the neighbouring properties. These restrictions render it impossible for the defender to make any use of the land in question. The only appropriate site selected by the defender for his office turns out to be on the strip of ground to which the pursuer's title is directly challenged. With these restrictions the land is useless for the defender's purpose. As explained in article 3, some building materials which had been deposited on the land in question by the defender, in the belief induced by the pursuer's representations that the ground was unrestricted, were removed as soon as the defender discovered that these representations were unfounded, or at least open to serious challenge. No possession of the land as let to the defender has ever been obtained or offered to him, and he is accordingly not due any rent to the pursuer. Moreover, in consequence of the great delay which has occurred in giving possession to the defender for building purposes, the defender has been put to very great trouble and expense, and has suffered loss and damage to an extent greatly exceeding the amount sued for. To the extent of such excess the defender's claim of damages is reserved.”

He also proposed to add, inter alia, the following pleas-in-law—“(5) The pursuer having failed to implement the said pretended let by giving the defender possession of unrestricted ground in terms of the let, has no claim to rent. (6) The pursuer having failed to give possession of the ground in terms of the let within a reasonable time, the said pretended lease is no longer binding, and the defender should be assoilzied.”

The Court of Session Act 1868, sec. 29, enacts that the Court may at any time amend any error or defect in the record or issues in any action or proceeding in the Court of Session upon such terms as to expenses and otherwise as to the Court shall seem proper.

The defender explained at the bar that in September 1896 he dropped the old petition, and lodged a new petition in the Dean of

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Guild Court for warrant to erect stables and an office on the ground in question; and that he was ordered to call the conterminous proprietors as respondents. Thereafter these appeared and stated the objections referred to in the minute of amendment.

Argued for the defender—The defender should be allowed to amend his record as proposed unconditionally. He had a written assurance by his landlord to start with, that the ground was his and that it was unrestricted. It was no part of the defender's duty to investigate closely that statement of his landlord's; and he only became aware of the objections to the landlord's title, and of the restrictions and servitudes over the ground, when the conterminous proprietors lodged answers in the Dean of Guild Court. It was therefore no fault of his that in his original defences he did not take up his present position; the fault lay with the pursuer. The question of expenses should at all events be reserved till the event proved whether the defender's new defence was well founded.

Argued for the pursuer—The defender should be allowed to amend his record as proposed only upon condition of paying the whole expenses of the cause from the closing of the record. Keith v. Outram & Company, June 27, 1877, 4 R. 958; Morgan, Gellibrand, & Company v. Dundee Gem Line Steam Shipping Company, December 9, 1890, 18 R. 205; Guinness, Mahon, & Company v. Coats Iron and Steel Company, January 21, 1891, 18 R. 441, referred to.