Scottish Court of Session Decisions

William Jopp Chambers Hunter, appellant, brought a Special Case in an application to the Land Court by John Strachan, applicant and respondent, for an order fixing a first equitable rent and the period of renewal of the tenancy of the farm or croft of Damhead, on the estate of Tillery, Aberdeenshire, of which the appellant was heir of entail in possession.

The Case stated—“… 2. The applicant became tenant of the subjects at Damhead, on the estate Tillery, under a lease for nineteen years from the term of Whitsunday 1908, with a mutual break on twelve months' notice in writing being given prior to the terms of Whitsunday 1909 or Whitsunday 1915. The rent under the lease was £40. In 1907 the tenant received a reduction of £5, and since 1903 he has received an annual abatement of £4 for the purpose of applying manure to the land.

3. On 13th May 1914 the tenant wrote to the landlord's agents in the following terms—‘… [ The correspondence is quoted supra in rubric]. Nothing further was done on this correspondence until this application was lodged on 18th January 1915. The applicant is still tenant of the said subjects.

4. The case was heard at Aberdeen on 7th May 1915 by Mr Alexander Dewar, a member of the Land Court. Evidence was led, and the said letters were admitted. The holding was inspected on 13th May 1915. Mr Dewar held that the tenant's letter of 13th May 1914 was sufficient notice that the tenant intended to take advantage of the break in the lease as at Whitsunday 1915, and he accordingly found that the applicant was a statutory small tenant and entitled to have an equitable rent fixed and a period of the renewal of his tenancy.…

6. The said William Jopp Chambers Hunter respectfully maintains that the said John Strachan had not given valid notice in terms of his lease of his intention to take advantage of the break therein at the term of Whitsunday 1915, and that the said decision is erroneous in point of law in respect that it finds that the said lease was terminated by written notice at the term of Whitsunday 1915, and to the extent that it repels the objection of the said William Jopp Chambers Hunter that the said John Strachan is tenant of the holding under a lease current to the term of Whitsunday 1922.

7. The said John Strachan maintains that by his letter of 13th May 1914 he gave notice of termination of his tenancy under the break provided in his lease; that said letter was accepted by the respondent's law agents as intimation that the said John Strachan intended to take advantage of the break in the lease unless the landlord agreed to a reduction of rent; that no such reduction was agreed to by the landlord; that no terms were arranged on which he would consent to stay on the holding after Whitsunday 1915; and that he was therefore not a tenant of the holding under the lease current till Whitsunday 1922. Further, the said John Strachan maintains that there is no question of law involved in the interlocutor of the Land Court which can competently be appealed to the Court of Session.”

The order dated 6th August 1915 repelled the appellant's objections, found that the applicant had terminated his lease at Whitsunday 1915 by written notice, that he was thereafter a statutory small tenant, fixed the period of renewal at seven years and the rent at £29.

The note appended to the order of the Land Court stated—“… The Court is satisfied that the applicant's letter is sufficient notice that he was taking advantage of the break in his lease at Whitsunday 1915 in order to obtain a reduction of rent and a water supply, and that the letter seems to have been accepted as such by the respondent's solicitors. There is no statutory form of notice to take advantage of a break in a lease. No doubt the letter in form might seem to be merely communicating a fact as regards the break, but taken as a whole there does not appear to be any room for doubt as to his intention in writing the letter. No agreement was reached between the parties as to what the conditions of the tenancy should be after Whitsunday 1915, and the applicant thereupon lodged the present application as a statutory small tenant to fix a first equitable rent and a period of renewal of his tenancy …”

The question of law was—“Did the applicant's letter of 13th May 1914, above quoted, constitute a valid notice of his intention to take advantage of the break in his lease at the term of Whitsunday 1915?”

Counsel for the respondent at the outset of the hearing objected to the appeal as being incompetent, and argued—Appeal to the Court of Session was incompetent. Appeal from a judgment of a single member of the Land Court should be to three members—Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), sec. 25 (5). The whole Act showed this, and the Act having provided an appeal from the decision of one member, its whole provisions should have been exhausted before proceeding to a special case. There was no previous case of review straight from one member. Section 3 designed the “chairman” of the court, who was to be an advocate. That proved that the “Court” was a plurality of members. They might delegate their powers to one of their number, but his report would be subject to review by at least three members, one of whom should be the chairman. It was out of reason to suggest that a party could by bringing his special case from the judgment of one member ignore all the rest, more especially where the Act had stipulated that the chairman was to be a lawyer of ten years' standing. Here the case had not been considered by a lawyer.

Argued for the appellant—This was not an appeal, strictly so called. It was a statement asking a ruling on a point of law.

Page: 727↓

This procedure might be adopted at any stage. The members of the Land Court were judges of what they would delegate to one of their number. There was no limitation of the powers they might delegate. Hence one person might for the nonce be “the Land Court.” There was no provision in the Act for confirmation of the decision of one member by a quorum of the Land Court. “Court” meant the Scottish Land Court, however it might at the moment be constituted, one or two or more persons sitting as members.

The Court, after consultation with the judges of the First Division, repelled the objections to the competency.

On the merits of the case, argued for the appellant—The respondent was sitting under a lease, for he had not taken advantage of the break therein. The matter could be tested by assuming the converse case. If the appellant had taken the letter as notice and re-let the farm the tenant would have had a good ground for complaint. The notice must be unequivocal— Gilchrist v. Westren, 1890, 17 R. 363, 27 S.L.R. 273; M'Intyre v. M'Donald, 1829, 8 S. 237. Here there was no notice at all, only a fortifying of the request for easier terms. The appellant's agents did not treat the respondent's letter as dealing with the break at all. They made no reference to the break in their reply.

Argued for the respondent—Conditional intimation was quite enough, as was decided in the case of Gilchrist ( cit.). There was in the letter a clear juxtaposition of the using of the break or alternatively the receiving of the improvements.

At advising—