Christian M'Intyre, and Others - Lushingto - Rutherford v. M'Nab's Trustees - Lord Advocate (Jeffrey - Russel [1831] UKHL 5_WS_299

UKHL
Christian M'Intyre, and Others - Lushingto - Rutherford v. M'Nab's Trustees - Lord Advocate (Jeffrey - Russel
[1831] UKHL 5_WS_299
Held (affirming the judgment of the Court of Session) that a tenant under a written lease must give notice forty days before Whitsunday of his intention to remove, otherwise he will be held to continue in possession by tacit relocation.M'Nab , of M'Nab, disponed his estate in trust on the 12th of March 1812 to trustees, who were infeft, and allowed the estate to be managed by M'Nab. On the 28th of February 1813, he granted a missive of lease of the grounds of Portnellan to Duncan M'Intyre for seven years. M'Nab afterwards went abroad, and the estate was managed by Duncan M'Intyre, writer, in Callender, to whom the trustees granted a factory for levying the rents, but it contained no power relative to the removing of tenants. The lease was to terminate at Whitsunday 1820, and M'Intyre, the tenant, alleging that he had given notice of his intention to remove at that term, began to carry off part of his effects. The trustees denied that he had given any such notice, and proceeding on the footing that he had incurred a

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The Lord Ordinary, on the 11th of July 1823, pronounced this interlocutor:—

Whitsunday 1820; and finds, that if he failed to do so tacit relocation must have taken place, and consequently the claim of damages insisted in by the pursuer would not be well founded; but in respect the pursuer offers to prove, in the fourth article of his condescendence, that he actually made said intimation in due time to Duncan M'Intyre, the late factor, before the factory was recalled, or at least before the recal of the factory was intimated to the pursuer; while these assertions are denied, and the facts are differently stated and explained in the fourth article of the answers, Allows the pursuer, before answer, a proof of the said fourth article of his condescendence, and the defender a proof of the fourth article of his answers, and also of the third article of the answers, with regard to the time at which the pursuer's treaty with the Earl of Breadalbane, or his Lordship's factors, for a renewal of the lease of the farm of Benmore, broke off,” &c.
“Finds, that the pursuer not having been warned by his landlord to remove from the farm of Portnellan as at Whitsunday 1820, when the lease was to expire, and the advertisement by the landlord of this farm being to let, along with several others, at the said term of Whitsunday, having been discontinued in the month of January 1820, while the advertisement as to the other farms was continued, the pursuer was bound to intimate in due time to his landlord, or others authorised to act for the landlord, his intention to remove at

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On advising the proof which was taken, his Lordship, on the 28th of November 1828, pronounced this judgment:—
“Finds it not instructed that such notice was given by the tenant in this case as to exclude tacit relocation, and bind and entitle him to remove from the farm, and deliver over his stock to the defenders, on valuation, at the time alleged by the pursuers: therefore sustains the defences, assoilzies the defenders, and decerns: Finds neither party entitled to expences.”
In the meanwhile M'Intyre had died, and Christian M'Intyre and others were sisted in his place as his representatives. Both parties reclaimed; the pursuers on the merits, and the defenders as to expences.The Court, on the 11th of December 1829, adhered on the merits, but altered and found the defenders entitled to expences. *M'Intyre and others appealed, and repeated their statements, and the argument which had been maintained in the court below, in regard to notice not being requisite. They also contended that the sequestration was illegal and oppressive, seeing that the rent was not payable till the 26th of May. The respondents, on the other hand, contended that notice was requisite; that notice had not been given; that the factor had

Footnote

* 8 Shaw and Dunlop, 237.

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Lord Lyndhurst .—My Lords, in the case of an English tenancy, under a lease for a certain time, it is not necessary, either on the part of the landlord, or on the part of the tenant, that any notice should be given, for the purpose of effecting the termination of the interest at the period when it is to expire; but that is not the case in Scotland. As far as relates to the landlord, it is perfectly clear, that where there is a lease for a period of seven years, for instance, as in the present case, the interest of the tenant does not expire at the end of the seven years, unless the landlord gives forty days notice, previous to the expiration of the term, of his intention that the interest should cease; if he omit to give such notice, the interest goes on for another year. The same degree of certainty does not, undoubtedly, exist with respect to the necessity of a notice on the part of the tenant; and the main point in this case is, whether or not a similar and corresponding notice is necessary on the part of the tenant. In the Court below, the Judges state that they have never heard the matter doubted; that as forty days notice was necessary to be given by the landlord, for the purpose of terminating the interest of the tenant, so a corresponding notice was necessary to be given by the tenant, for the purpose of putting an end to his interest. My Lords, the authorities cited appear to me, upon the whole, to establish this proposition, that forty days notice is necessary on the part of the tenant. Lord Stair says, that “tacks cease by the expiry of the terms thereof, and the letters warning, or other deeds, to take off tacit relocation, or the tenant's renunciation, the form whereof is—the tenant, forty days before Whitsunday, subscribes and delivers to his master a renunciation of his tack and possession, consenting that he enters, brevi manu, without hazard of ejection; whereupon there must be taken an instrument of renunciation in the hands of a nottar, as a solemnity requisite, which is sufficient to instruct the overgiving, as being the habile way approved in law; albeit, in other cases not approved in law, instruments of intent prove not the deed of the party. In this case it avoideth the tack, and is provable by instrument, if the tack be expired, but during the tack, the instrument will not prove the acceptance of the renunciation.” Lord Bankton says, “It

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The House of Lords ordered and adjudged, That the interlocutor complained of be affirmed.Appellants' Authorities .—2 Ersk. 6, 45; Stat. 1555, c. 39; Bell on Leases, p. 497; Gordon, 13th January 1803 (13,854). Respondents' Authorities .—2 Stair, 9, 34; 2 Bankton, 9, 32; 2 Ersk. 6, 35; Bell on Leases, p. 497; Bryson, 28th July 1744, Kilk.; Earl of Haddington, 24th February 1693, 1 Fount. 565; Duke of Athol, 15th March 1819 (F.C.); Gordon, ut supra.Solicitors: Spottiswoode and Robertson,— John M'Queen,—Solicitors.