Scottish Court of Session Decisions

John Welsh, proprietor of the house known as Hillhouse Stenhouse, raised an action in the Sheriff Court of the Lothians and Peebles at Edinburgh against George Duncan, praying the Court “to grant a decree against the above-named defender, ordaining him to pay to the pursuer the sum of £17, 10s. sterling, with interest thereon at the rate of five per centum per annum, from the 11th day of November 1892 till paid.”

The pursuer averred—“(Cond. 2) The pursuer let the said dwelling-house and ground to the defender for the year from the term of Whitsunday 1892 to the term of Whitsunday 1893, at a rent of £35 sterling payable half-yearly at the usual terms, and the defender entered into possession in April 1892… . (Cond. 3) At the term of Martinmas 1892, a half-year's rent of said dwelling-house—viz., £17, 10s.—became due by the defender to the pursuer. The pursuer has repeatedly applied to the defender for payment of said rent; but he refuses, or at least delays, to make payment, and the said sum of £17, 10s. is still due and unpaid. The present action has thus been rendered necessary.”

The defender lodged defences, in which he alleged that he had agreed to take a lease of the subjects for three years at a rental of £35 per annum on the condition that the pursuer carried out certain improvements and repairs on the subjects, including the following—the erection of a wash-house, with all modern conveniences, and the erection of a glass-house, and the removal of a wall in the garden. The defender also averred that the pursuer was due him the sum of £7, 17s. 6d. as his share

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of the expense of three fowl-houses which he had agreed should be erected at the joint-expense of himself and the defender, and that this sum must in any event be deducted from the sum sued for.

Proof was led, and on 17th May 1893 the Sheriff-Substitute ( Hamilton) pronounced the following interlocutor:—“Finds in fact that the defender has been tenant of the subjects in question since Whitsunday 1892, at a rent of £35 per annum: Finds that only after proceedings for recovery of the rent sued for had been threatened was any complaint made as to the state of the dwelling-house which forms part of the subjects, or that the pursuer had not fulfilled the obligations undertaken by him in connection with the defender's lease of the subjects: And finds it not proved that the pursuer undertook as part of his bargain with the defender to provide a washing-house with fixed tubs and other appliances, to erect a glass-house in the garden, and to remove a wall there: Finds in law that the defender is liable in payment of the rent sued for: Repels the defences and decerns against the defender in terms of the conclusions of the libel.”

Against this interlocutor the defender appealed to the Court of Session.

The pursuer took objection to the competency of the appeal, and argued—The conclusions of the action showed that the value of the cause did not exceed £25. The Court could only look at the conclusions of the action; the appeal was therefore incompetent— Dixon v. Bryson, May 14, 1889, 16 R. 673; North British Railway Company v. M'Arthur, November 5, 1889, 17 R. 30. The case of Bayden v. Macfarlane, November 2, 1867, 3 Maeph. 7, did not apply, as in that case the defender's liability under an I O U brought the sum sued for above the £25 limit. And in the case of Thomson v. Barclay, February 27, 1883, 10 R. 694, there were conclusions to the action other than monetary, so this case also was inapplicable.

Argued for the defender and appellant—The appeal was competent. The action was brought really to decide whether there was any lease between the parties or not, and, besides, the condescendence showed that the sum involved was £35, viz., the whole year's rent, although only half a year's rent was sued for— Cunningham v. Black, January 9, 1883, 10 R. 441; Drummond v. Hunter, January 12, 1869, 7 Macph. 347.

At advising—