Scottish Court of Session Decisions

This is an action of declarator and removing at the instance of a landlord against certain parties who claim to be tenants of one of her farms. The question is one of pure fact. The main facts relied upon were these. In 1858 a lease was granted for ten years, with the proviso that the landlord should survive so long, to a party named and his heirs, with a clause excluding assignees and sub-tenants. Under this lease the tenant possessed for two years. He died in 1860; but previous to his death he made a trust-deed assigning the lease to his sisters, the defenders of the present action. Both the trust-deed and the lease were prepared by the same agent, who was the landlord's private agent. The defenders pleaded to the action of declarator that this assignation had been intimated to the landlord, and that she had consented to receive them as tenants in various ways, in express terms, by the receipt of rents and otherwise. The Lord Ordinary (Jerviswoode) held that the right in the lease was one personal to the landlord, which she might waive, and as matter of fact had done so. The Court to-day unanimously adhered. The Lord Justice-Clerk expressed a very strong opinion that the case should have been tried by a jury. After stating in a single sentence the question at issue, his Lordship said—We are all satisfied that this case should have been disposed of by a jury. But as the duty has been forced upon us of applying our minds to the evidence as jurymen, we shall avail ourselves of the privilege of jurymen and of the short method in which they deal with evidence, and simply say that we find for the defenders.