Scottish Court of Session Decisions

Alexander M'Lelland, farmer, Balyett, was proprietor of a dwelling-house in Lewis Street, Stranraer. He brought this petition in the Burgh Court of the royal burgh of Stranraer against William Ross Garson, solicitor in Stranraer, whom he alleged to be tenant of this dwelling-house under a lease from August 1881 to Whitsunday 1884, to have him ordained to place furniture and plenishing in the dwelling-house equal in value at least to the year's rent, or find caution for the rent, and failing his doing so, for warrant for his ejection and warrant to relet the premises. A condescendence and note of pleas-in-law were annexed to the petition The respondent denied that he was tenant under the lease referred to, and averred that a stipulation with regard to repairs upon the house, which had been agreed on by the parties and inserted in the draft, had per incuriam been omitted from the lease. He averred further that it was not in good tenantable condition, and maintained that in these circumstances he was not liable for rent.

He pleaded that the Burgh Court had no jurisdiction in such an application, and also that the proper procedure being a special form provided by Act of Sederunt for such applications, and the petition not being in conformity therewith, it should be dismissed.

The Act of Sederunt 13th February 1845, as to records in the Courts of royal burghs and burghs of barony, provided (sec. 5), that in all summary applications to be presented in the Burgh Courts… “the petition shall state generally (as in the present form of a note of suspension before the Supreme Court) the subject of complaint, setting forth specifically in the prayer the remedy craved,” and that there shall be annexed to the petition an articulate statement of facts with note of pleas-in-law.

The Act of Sederunt of 10th March 1849, as to prorogation and proofs in Burgh Courts, provides, (sec. 2) with regard to proofs “that the interlocutor allowing proof shall appoint the place where it is to be taken; and the Court shall in every instance, on due consideration of the circumstances of the case and of the matters to be remitted to probation, assign a time for commencing the proof, and another within which the same shall be reported, unless there be in any process some special cause for omitting all or any of these particulars, in which case such special cause shall be distinctly set forth in the deliverance.”

The Magistrates repelled the preliminary pleas, and allowed a proof, after which they found that the respondent was tenant of the house under the lease, that it was in good tenantable condition, and that the respondent had failed to occupy and furnish it. They found in law that he was bound to occupy and plenish it, and ordained him to place such plenishing in it to the satisfaction of the Court, and that within eight days. The interlocutor allowing this proof fixed the date of proof, but did not state the place at which it was to be taken.

The defender appealed to the Court of Session, and argued that the proceedings in the Burgh Court were incompetent. It had no jurisdiction in questions of this kind at the present day, as it had been entirely superseded in such matters by the Sheriff Court. Its jurisdiction had been lost non utendo. Further, the interlocutor allowing

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proof was not in conformity with the Act of Sederunt of 10th March 1849 which was passed to regulate proof in the courts of royal burghs, and which by sec. 2, sub-sec. 1, provides, inter alia, as above quoted, “that the interlocutor allowing proof shall appoint the place where it is to be taken”… This provision was not complied with.

Authority — Wright v. Wightman, 3d Oct. 1875, 3 R. 68.

Counsel for the respondent was not called on.