Sheriff Orr.-The house in question belongs to the pursuer, who let it to the defender, Mrs Barclay, on a yearly lease from Whitsunday 1916 to Whitsunday 1917, subsequently renewed each year. The rent is £19, 19s. The said defender admittedly intimated in writing, on 26th February 1919, that the let was to be terminated and the house vacated at the term of Whitsunday 1919. The pursuer accepted this intimation and in consequence thereof considered himself free to let the house to another tenant, and did let the house to another tenant, with entry at the said term. But defender now refuses to leave the house, and pleads that she is entitled to continue in occupation. She explains that a lease of other premises which her husband, the defender George Barclay, entered into has fallen through, and that they have failed to find accommodation elsewhere. Pursuer does not say he warned out the defender; his case is founded on the fact that defender voluntarily and unconditionally undertook in writing to vacate the house at Whitsunday 1919, that he accepted that intimation and let the house to another tenant, who now insists on getting possession. The case therefore raises the question whether the defender can lawfully contract out, and has contracted out of the provisions of the Increase of Rent, etc. (War Restrictions) Act of 1915, which would otherwise govern the question. As the pursuer did not purchase the house after 30th September 1917, the provisions of the later Acts do not apply. themselves out of the Act SO far as increase of rent or rate of interest is concerned. But the section of the Act dealing with recovery of possession of a dwelling-house, or the ejectment of a tenant therefrom (section 1 (3)), has no corresponding provision. In other words, there is no enactment that a tenant may not lawfully contract himself out of the right to remain in occupation of his house. Whatever be the law in regard to cases to which the Act of 1919 applies, it appears to me that in the present case landlord and tenant remain free in the matter of contracting out. (35 T.L.R. 521 (No. 27)), the tenant gave a notice to quit, but it was held that the notice was only a provisional notice which was to be regarded by plaintiffs as withdrawn unless confirmed by the tenant before a certain date and that the notice was not so confirmed. Such a provisional notice Mr Justice Astbury refused to regard as a ground satisfactory to the Court within "As the defendant," his the meaning of the section. Lordship says, "rightly or wrongly did not intend in this case to give other than a provisional notice in June 1918, I do not think any such ground exists." That case stands in marked contrast to the present, where the notice given by the tenant was a wholly unqualified and unconditional notice to leave the house at Whitsunday 1919, accepted by the landlord and acted upon by his letting the house to another party. I think that is a ground which ought to be regarded as satisfactory within the meaning of the section of the Act of 1915 for granting the warrant In the view I take the defenders' other craved. averments are irrelevant. In the case of Artizans Dwellings Co. v. Whittaker The defenders appealed to the Sheriff. On 29th October 1919 the Sheriff (Crole, K.C.), in sustaining the appeal, recalled the interlocutor of the Sheriff-Substitute and sustained the second and third pleas in law for the defenders. Sheriff Crole.--The pursuer, who is the owner of a dwelling-house at 34 Comely Bank Avenue, Edinburgh, let the house to Mrs Barclay, one of the defenders, on a yearly lease from Whitsunday 1916 to Whitsunday 1917, at a rent of £19, 19s. lease was renewed at the same rent for the year from Whitsunday 1917 to Whitsunday 1918, and The The question which thus arises sharply in this case has apparently not been made matter of decision, and it is one of some importance. I am of opinion that it is open to a tenant in the position of de-again from Whitsunday 1918 to Whitsunday 1919. fender to contract himself out of the right to remain in occupation of a house, and that the said defender has effectually done so in regard to this house. The Act in question encroaches upon and restricts in an anomalous fashion the rights of owners of certain dwelling-houses. It prevents them from ejecting tenants in certain cases, although the tenant's lease has expired and no new lease has been entered into. The provisions of such an Act should, I think, be strictly construed. The presumption is in favour of freedom of contract. The Act itself presents a striking and suggestive contrast in its provisions anent increase of rent or rate of mortgage interest, as compared with its provisions anent ejectment of a tenant. In the former case provision is made by section 1 (1) striking at raising of rent or mortgage interest as therein set forth, and it is enacted that these provisions are to have effect "notwithstanding any agreement to the contrary." In other words, landlords and tenants, lenders and borrowers, cannot contract By letter, dated 26th February 1919, Mrs Barclay intimated to the pursuer that she intended to vacate the house at Whitsunday 1919. The pursuer acted on this intimation and let the house to a Mrs Watson. Mrs Barclay now declines to vacate the house as the lease of other premises which had been entered into by her husband, the defender George Barclay, has fallen through, and the defenders cannot obtain other accommodation. The pursuer founds on the notice given by Mrs Barclay, and seeks in this action to have the defenders ejected from the house in question. He contends that by the notice given by Mrs Barclay and the acceptance by him an agreement was entered into by the parties outwith the Increase of Rent and Mortgage Interest Act 1915 which entitles him to the warrant craved, or alternatively that he having let the house to another person, the defender is barred personali exceptione, and that the fact that he has so let the house constitutes a ground which should justify the Court in granting such a warrant. I am of opinion that none of these contentions is JUDGES. Barclay. sound. Section 1 (3) of the Act above referred to The case where notice was given by the land- COURT to me to admit of no other construction." It was pointed out at the debate that 1 (3) in contrast with section 1 (1) does not in terms prevent parties contracting themselves out of the Act, but in my opinion the latter section in effect prevents the Court from enforcing such an agreement by granting a warrant of ejectment though it may be that an action of damages would lie for a breach thereof. Looking to the terms of subsection 1 (3) I think there is no room in this case for the plea of personal bar. The only remaining question is whether the fact that the pursuer let the house in question to another party on the faith of the notice given by the defender Mrs Barclay should be deemed a satisfactory ground in terms of the subsection for pronouncing the order craved. I am of opinion that this fact is not a reason which would justify the Court in pronouncing such an order. It is not averred that the pursuer has suffered any loss or damage by the action of the defender. The only person who seems to have suffered inconvenience is Mrs Watson, the person to whom the house was let, and I do not think that the averment regarding the inconvenience suffered by her and the condition of her present house is relevant. Moreover, I think the ground upon which the Court can proceed must be a ground consistent with the grounds specified in the subsection. It has been held in England that the discretion conferred upon the Court by the subsection did not include a discretion inconsistent with the earlier provisions thereof. (Stovin v. Farebrass, 35 T.L.R. 659; Price v. Pritchard, ibid. 672). The pursuer appealed to the Second Division of the Court of Session. On 28th November 1919 the Second Division appointed the cause to be argued before seven judges. Argued for Pursuer and Appellant: The Sheriff-Substitute was right. (1) The Rent Restriction Act 1915 did not apply to this case. limitation on the discretion of the Court. The Argued for Defenders and Respondents: The Avizandum, 2nd December 1919. a 1919. December 10, The Lord President.-I am of opinion that an order of ejectment may be made in this case. 1919. The facts, which are few and simple, are accurately and fully narrated in the notes of the learned Sheriffs. I repeat them only so far as necessary to make clear my ground of judgment. The tenant of a dwelling-house in Edinburgh let at a rent of 19 guineas per annum gave due notice in writing to her landlord that she intended to vacate the house at Whitsunday 1919. She recommended a friend as tenant. The landlord accepted the notice and let the house to this friend, who now desires to occupy it. The tenant who gave the notice now says she will not go and means to stay. The question is, Can she insist on remaining as tenant of the house, or may she be ejected? In my judgment there exists here a ground "which may be deemed satisfactory by the Court" for making an order of ejectment. The ground alleged by the landlord is that the tenant herself said she was minded to go and recommended her successor; and that he, acting upon the intimation, let the house to the tenant recommended, who now desires to occupy it. That is, in my judgment, a satisfactory reason for granting warrant of ejectment. oust the sitting tenant in favour of another. This argument was buttressed by no decision, but was supported by the reasoning of Bankes, L.J., and Atkin, L.J., in the case of Stovin v. Farebrass (1919, 35 T.L.R. 659). The passage from the judgment of Bankes, L.J., on which reliance was placed, is as follows: "In face of this very definite enumeration of the grounds which the Legislature is prepared to recognise as grounds upon which an exception may be made to the general rule, I cannot think that it was intended that any ground which any Court might consider satisfactory should be included in the general words 'other grounds' which follow the specified exceptions. I realise that there is an insuperable difficulty in defining the limitation which ought to be placed upon these general words. I must content myself with saying that I do not consider that the general discretion conferred upon the Court by the subsection can be held to include the exercise of a discretion which is inconsistent with the earlier provisions of the subsection. This construction of the subsection does not deprive the general words conferring a discretion upon the Court of all meaning, because there may be cases other than those specifically dealt with in which the exercise of the discretion may not be inconsistent with the earlier provisions of the subsection. For instance, a landlord may require possession of premises not for occupation at all. He may require them in order to pull them down, because they are dangerous or unfit for habitation. Other instances could easily be given." It is common ground that the controversy turns upon the proper construction to be placed on section 1 (3) of the Increase of Rent and Mortgage Interest Act 1915. That subsection I am unable to agree in thinking that the very provides [His Lordship quoted the subsection]. general words used in the subsection ought to be It is clear that none of the exceptions specified so limited. And I am fortified in that view by in the subsection applies to the case before us, the fact that the ingenuity of counsel failed to and reliance is placed by the landlord on some suggest, and I cannot myself conceive, any other other ground which may be deemed satisfactory instances to which the general words could refer by the Court. That ground is notice of intention when thus narrowly limited. Instances certainly to vacate given by the tenant, accepted by the cannot be easily given. At all events no one has landlord, and followed by a let to another tenant yet given them. My mind goes rather with who desires to occupy the house. I am at a loss Lord Justice Scrutton when in the same case to conceive any reason more satisfactory than he says: "It appears to me impossible to limit that for ejecting the sitting tenant. To refuse these words, so as to define certain grounds ejection in such a case as this would in my which the Court must not and cannot deem judgment be to frustrate the purpose of the satisfactory. An attempt to limit them by the enactment, for no landlord to whom such a doctrine of ejusdem generis in the Court below notice was given could ever act upon it with was abandoned before us, for it seems impossible, certain effect, and no incoming tenant could on the specified grounds, to find a common genus, count upon getting entry to the house. This and the limitation ejusdem generis, if possible, seems to have been the view taken by Lush, J., would rather hurt than help the tenant in this in the only case cited to us which is directly case. When the Court may make the order on in point. I respectfully agree. But we were specified grounds, it may also make the order urged, on behalf of the defender, to give a on grounds other than those specified, if it narrow and limited interpretation to the words deems them satisfactory, and it appears to me "some other ground which may be deemed that no limit is put on the discretion of the satisfactory by the Court," and to confine the Court. . . . . It (Parliament) has apparently landlord's right to put in another tenant to the foreseen that every variety of different facts may specific instances given in the subsection. In no arise in a particular case, and has felt itself other case, it was contended, could the landlord | unable to lay down general rules covering every Barclay. December 10, 1919. individual case, and has remitted the matter to which may be deemed satisfactory by the Court COURT the discretion of the Court as to what action making such order." These words seem to me oF SEVEN JUDGES. should be allowed on the particular facts of the expressly to empower the Court to grant an case before it." I do not stand alone in prefer-order for recovery of possession or for ejectment Smith v. ring this construction of the words of the statute. on any ground-it was obviously impossible for In the subsequent case of Price v. Pritchard the Legislature to describe such grounds by way (1919, 35 T.L.R. 672), Mr Justice M'Cardie of anticipation-which it might deem satisand I rather think Mr Justice Sankey lean to factory. The power so conferred is very wide the same view-a view which I understand is and ample. The general words above quoted shared by your Lordships. If this wider, and, cannot, in my judgment, be read as restricted as I think, natural construction be adopted, it to grounds ejusdem generis with, or otherwise could scarcely be contended that we have not limited in relation to, the exceptions specially present in the case before us a satisfactory mentioned. I sympathise, on this matter of ground to warrant an ejectment order. construction, with the views expressed by Lord Sands in Grandison (1919, 1 S.L.T. 95) and by Scrutton, L.J., in his dissenting opinion in Stovin v. Farebrass (35 T.L.R. 659). Now, it seems to me that there could hardly be a clearer case of satisfactory ground for granting an order than is presented by the accumulated circumstances which I summarised at the outset. agree in result with the decision by Lush J. in Green-Price (1919, 36 T.L.R. 29), where the facts were substantially identical with those here present. That case was not before the learned Sheriffs whose judgments are both prior to it in date. For these reasons the pursuer is, in my judgment, entitled to prevail. The question whether, by giving notice to the landlord of her intention to vacate the house, the tenant had placed herself outside the statute altogether and hence was not entitled to claim its protection, although mooted, was not argued. I desire expressly to reserve my opinion upon this question, merely pointing out that in the case of Hunt v. Bliss (1919, 36 T.L.R. 74), a Divisional Court in England, composed of Coleridge and M'Cardie JJ., appears to have decided the question adversely to the landlord. Proceeding, however, on the ground I have stated, which is sufficient for our decision in this case, I propose that we should recall the interlocutor of the Sheriff, and remit to the Sheriff-Substitute to grant warrant of ejection as craved. The Lord Justice-Clerk.—I concur. Lord Dundas.-I am of the same opinion. (His Lordship here narrated the facts as above quoted.] The situation thus was that Mrs Barclay declined to go out; Mrs Watson insisted on coming in, and would presumably sue the pursuer for damages in the event of his failure to implement his bargain with her. In these circumstances the pursuer brought this action to compel the defender to leave the house. The Sheriff-Substitute granted decree, but the Sheriff on appeal dismissed the action. If my opinion upon this point is correct, it is sufficient for the disposal of the case. It is unnecessary, therefore, to discuss the question whether, or how far, a tenant may contract himself out of the Act; or the view, which seems to have been approved by Duke L.J. in Flannagan's case (36 T.L.R. 34 at p. 35), that where a tenant gives, and the landlord accepts, an unconditional notice to quit, there is thereafter no tenancy, and no room for application of the Act. These topics were mooted, but barely argued, at the debate before seven judges; and I do not express any opinion in regard to them. ever, is one of very great importance, and it is Lord Salvesen.-I confess that I never had any doubt as to what ought to be the decision of the Court in this case, and, but for the fact that there were expressions of opinion in an opposite The arguments turned upon the construction sense by English judges on which great reliance of the Act of 1915, and particularly section 1 (3) was placed, I should not have been a party to thereof. That section provides that "no order sending a case of such small pecuniary importfor the recovery of possession of a dwelling-ance to seven judges. The point raised, how. house to which this Act applies or for the ejectment of a tenant therefrom shall be made so long as the tenant continues to pay rent at the agreed rate as modified by this Act and performs the other conditions of the tenancy, except" as therein provided. The first exception deals with misconduct on the part of the tenant, the second with the case of the landlord reasonably requiring the premises for his own use, or that of some other person in his employ, or in the employ of some tenant from him. These exceptions do not here arise; but the section continues "or on some other ground The Act under which the case has arisen was one for the protection and relief of tenants. The double purpose which the Act was intended to serve was, in the first place, to prevent the landlord disturbing the possession of a tenant who desired to remain, and, secondly, to prevent an increase of rent. These were the two main objects of the Legislature to which they have COURT given very clear effect in the Act with which OF SEVEN we are now dealing. 1919. JUDGES. The lay interpretation of the Act seems to Smith v. have been, what I venture to think, the commonBarclay. sense one. It is embodied in a quotation that December 10, we have from what is known as "The Tenants' Emergency Charter," which, I understand, is a publication in the interests of and for the guidance of tenants who might find themselves in the position of being threatened with ejection. That publication contains this paragraph: "Tenant's Notice to Quit.-There is one case in which the tenant is kept to his bargain, that is, if it is he who has given notice to bring the tenancy to an end. He cannot go back on that but must go out. It makes no difference though he cannot get his intended new house." That exactly expresses my view of the scope and effect of the Act in question, subject always to the condition that the house is reasonably required by the landlord either for purposes of his own or for occupation by some other tenant of his selection. If it were otherwise, instead of this being an Act for the protection of tenants, it would make it very difficult for a tenant to get away from a house with which he is dissatisfied, because, in the present condition of the market for houses, when one knows that every house is taken as soon as it is vacant, you might have a stream of tenants all desiring to remove at a particular term, all of whom would be frustrated in their plans if a single one of them refused to quit when the term arrived. I cannot imagine the Legislature intended to restrict the freedom of tenants in an Act which was intended for their protection and relief. Your Lordship in the chair has pointed out, and I think it is no exaggeration to say, that under such circumstances no landlord could let his house to an incoming tenant, and no incoming tenant could ever know whether he would get possession, and you might have the appalling spectacle of a dozen people having their furniture in the street and yet all of them being compelled to take it back into the houses from which they desire to remove because some recalcitrant and obstructive person, into whose house one of them was shifting, declined to be disturbed. Now, this has been called a whimsical result of the Act by an eminent English judge. With all deference to him, it seems to me that you may make any Act whimsical if you put a whimsical construction upon it. There is absolutely no ground, as it appears to me, for such a construction. The Act has provided for circumstances in which the Court may grant a warrant to a landlord for ejection of a tenant; but it also provided that in addition to this the Court may consider and decide whether some other ground would be satisfactory for making an order. The learned justices to whom your Lordship has referred have read these words entirely out of the Act on the principle of construction that is known as ejusdem generis. In the first place, I cannot find any reason for applying that principle to a case where there is no genus. But I distrust the application of that doctrine as a rule, and it seems to me to be entirely excluded when you have language such as is contained in the Act-"or on some other ground which may be deemed satisfactory by the Court making such order." It is not often that the Legislature leaves to the tribunals of the country the working out of modern pieces of legislation; but, in this case, it has done so, and I cannot understand why we should refuse to consider any other ground than those specifically enumerated when the Act puts upon us the duty of considering in each case whether some other ground than those enumerated is not a satisfactory ground for pronouncing an order of ejectment. Lord Mackenzie.-The tenant in this case, Mrs Barclay, gave notice on 26th February 1919 to her landlord that she intended to vacate at the May term the house he had let to her. The house was let to her from year to year with a Whitsunday entry. Mrs Barclay recommended a friend-Mrs Watson-who, she said, would make an ideal tenant. Following on this the landlord let the house to Mrs Watson. Mrs Barclay has refused to remove because she was unable to get entry to other premises she had taken. Mrs Watson wishes possession, which the landlord is unable to give owing to Mrs Barclay's refusal to go. Mrs Barclay pleads the statute-"The Increase of Rent, etc. (War Restrictions) Act, 1915," section 1 (3). I agree in the construction proposed of the words "or on some other ground which may be deemed satisfactory by the Court making such order." This expression ought not in my opinion to be limited by the provisions which precede it. It is no doubt necessary that these words should receive construction, and, for my own part, though I should not be prepared to say what they would include, I think I should state what I think they do not include. The purpose of the section is to protect a tenant from proceedings against him at the instance of his landlord. I therefore think it would not be competent for a tenant to contract himself out of the Act ab ante, and contract that he was to have none of the benefits of the Act. This, however, does not mean that he should not have liberty to prevent tacit relocation. If he does take the necessary steps by giving notice to prevent tacit relocation, then, unless the landlord is entitled to place reliance on the notice, he would not be in safety to let to another tenant until the term-day had arrived. This would dislocate the whole system of letting |