Scottish Court of Session Decisions

This was a suspension of a decree of removing obtained in the Sheriff Court of Inverness-shire.

The suspender Coll Mackintosh had for a number of years occupied the hotel at Fort Augustus, holding first the old, and after wards the new hotel there, and also certain ground thereto adjoining. These subjects were the property of the respondent Lord Lovat.

By a written agreement, dated 23d March 1878, Lord Lovat let to the suspender for seven years, from Whitsunday 1878, the hotel and the lands then possessed by him (suspender), and the new hotel which had been built adjoining the old hotel. The lands in connection with the hotel were about 33 acres, four of which were during the lease resumed by Lord Lovat, a deduction from the rent of £2 for each of these acres being allowed. There thus remained the old hotel and the new hotel and 28 acres of ground. The lease expired at Whitsunday 1885, and the suspender continued in occupation by tacit relocation for one year.

The question in this suspension was whether the Agricultural Holdings Act 1883 applied to these subjects. Lord Lovat gave the suspender the notice which would be requisite for a removing from such subjects at common law, but not the notice which would apply if the Agricultural Holdings Act 1883 applied. If that Act applied the suspender would have been entitled to six months' notice of removal.

The Act provides by section 28—“Not withstanding the expiration of the stipulated endurance of any lease, the tenancy shall not come to an end unless written notice has been given by either party to the other of his intention to bring the tenancy to an end—( a) In the cases of leases for three years and upwards, not less than one year, nor more than two years before the termination of the lease; ( b) in the case of leases from year to year, or for any other period less than three years, not less than six months before the termination of the lease. Failing such notice by either party, the lease shall be held to be renewed by tacit relocation for another year, and thereafter from year to year.” Section 35 provides—“Nothing in this Act shall apply to a holding that is not either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant during his continuance in any office, appointment, or employment of the landlord.” And section 42 provides that “holding” means “any piece of land held by a tenant.”

In December 1885 Lord Lovat presented a petition to the Sheriff of Inverness to have the suspender ordained to remove at Whitsunday 1886.

After certain litigation the decree of removing was obtained, and a charge given thereon. These it was now sought to suspend.

The suspender stated that he was a farmer, and a hotel business was only practically carried on a short time during summer, and that the hotel was a mere adjunct of the farm. He pleaded that being tenant of a holding within the meaning of the Act he was entitled to notice of removal in terms of it.

The respondent maintained that he was not such a tenant and had been duly warned to remove.

The Lord Ordinary ( M'laren) found the charge to remove, which had been given on the Sheriff's decree, orderly proceeded.

“ Opinion.—This is a note of suspension at the instance of a tenant praying for the suspension of a decree of removing obtained by the respondent Lord Lovat before the Sheriff Court of Inverness-shire at Inverness.

“In the Sheriff Court the action of removing was defended on various grounds which are set forth in the note of suspension. But in the argument before me only one question was raised, namely, whether the suspender's lease gives him the benefit of the Agricultural Holdings (Scotland) Act 1883, so that notice of removal has to be given not less than one year ‘before the termination of the lease.’ If the statute applies, it is not disputed that the decree must be suspended, because it is a condition of the argument that the suspender did not receive the prescribed notice of removal, but only such notice as is sufficient at common law.

“The subject of the lease is described as the hotel at Fort-Augustus, and lands then possessed by the suspender, and also the new hotel built adjoining to the old hotel. The rent is £160 per annum, which, however, has been reduced in consequence of land being resumed by the proprietor, or made over by arrangement to other parties. The extent of the holding is stated by the suspender to be 33 acres.

“The question is, as I have said, whether the suspender's holding is a holding entitling him to the benefit of the Act of 1883.

“By section 35 of that Act it is provided—‘Nothing in this Act shall apply to a holding that is not either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant during his continuance in any office, appointment, or employment of the landlord.’ Further, by section 42 of the said Act it is provided that ‘holding’ means ‘any piece of land held by a tenant.’

“Now, the subject let to the suspender is a hotel and land, and the subject cannot be described as being either ‘wholly agricultural,’ ‘wholly pastoral,’ or ‘in part agricultural, and as to the residue pastoral.’ Nor is it a market garden. The subject is therefore not a holding falling under any of the descriptions contemplated by the Act. I understand that the suspender relies entirely upon the words of section 42. But it is clear (so far as any enactment can be clear) that the more comprehensive definition of a holding contained in section 42 is controlled by the words of exclusion contained in section 35. The form of the proposition in section 35 is that of a universal negative, subject to certain exceptions. The suspender must be able to place his holding under one of the excepted categories, otherwise he takes no benefit from the statute.

“No other reason of suspension having been maintained at the bar, I shall recal the sist already granted and refuse the prayer of the note, with expenses.”

Argued for the reclaimer—He was entitled to six months' notice of removal under section

Page: 204↓

35 of the Agricultural Holdings Act 1883. Was he to be deprived of the benefit of the Act because with his farm of 33 acres he held another and separate subject, namely, the hotel? Neither farm nor hotel was an adjunct to the other. They were each independent and separate subjects, though held under one agreement.

At advising—