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Scottish Court of Session Decisions >>
The Duke of Argyle v Robert Russel. [1799] Mor 32_3 (7 December 1799)
URL: http://www.bailii.org/scot/cases/ScotCS/1799/Mor32REMOVING-002.html Cite as:
[1799] Mor 32_3
The tenant of an arable farm for one year, found, in the circumstances of this case, to be removeable without a formal warning.
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The Duke of Argyle let an arable farm to James Guild, for ten years from Martinmas 1788, at the rent of 873.
Guild having become infirm during the currency of the lease, the landlord allowed the lands to be managed by Robert Russel, the tenant's son-in-law.
Prior to Whitsunday 1798, Guild was regularly warned to remove at the ensuing martimmas; but a negotiation having been opened between the Duke's factor and Russel, for a new lease, they, in June 1798, ercered into mutual missives, by which it was agreed, that Russel should remain in possession of the farm from Martinmas 1798 to Martinmas 1799, for payment of £100 for that year.
In January 1799, Russel made an offer of £110 of yearly rent, for a lease of the farm for ninteen years from Martinmas 1799, which was rejected.
Prior to Whitsunday 1799, Guild was again regularly warned to remove at Martinmas 1799, but no warning was used against Russel, who was apparently the lessee under the missives executed in June 1798.
Russet having understood that the Duke of Argyte was to endeavour to remove him on the warning used against Guild, presented a bill of suspension of the threatened decree of removing, in which he contended, that as no warning had been used against himself, he was entitled, to remain in possession for another year.
To this it was answered for the landlord, 1st, That although the misslves of 1798 were in Russel's name, it was fully understood, that he was to possess the lands from Martinmas 1798 to Martinmas 1799, for behoof of Guild 2dly, That where a farm is let for a single year, a formal warning is not require And, lastly, That, supposing a formal warning to be necessary, Russel was put in mala fide to plead its omission, by his written offer in January 1799, for a new lease to commence at the very term at which the respondent was now endeavouring to remove him.
The Lord Ordinary took the question to report on the bill, answers, and replies.
The Court, on the whole circumstances of the case, thought that the Duke was entitled to remove Russel without a formal warning.
The Lords, almost unanimously, remitted to the Lord Ordinary to refuse the bill of suspension.
Lord Ordinary, Justice-Clerk Eskgrove.Alt. Arch. Campbell, junior.
Fac. Coll. (Appendix,) No. 8. p. 14.
