DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1821-1823. REPORTED BY PATRICK SHAW, ESQ. ADVOCATE. VOLUME I. WILLIAM BLACKWOOD, EDINBURGH: AND T. CADELL, AND J. BUTTERWORTH AND SON, LONDON. MDCCCXXVI. to embrace within each Report all those circumstances and pleas on which reliance seems to have been placed by the parties. One advantage will, at all events, be derived by the Profession from this work, if I shall be encouraged to continue it—I mean the facility that it will afford in consulting the Appeal Cases, which have hitherto been in a great measure unknown. For this pose, I have subjoined to each Report the Number of the Case, as arranged in the volumes which are in the Advocates' Library. pur Edinburgh, July 1825. CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1821. Sir J. G. SINCLAIR, Bart. Appellant.-Leach-Cuninghame. Landlord and Tenant-Clause.-Held,-1.-That a clause whereby a tenant was bound No. 1. THE farm of Borrowstoun in the county of Caithness was, prior Feb. 21. 1821. to 1785, possessed under a lease of twelve years, obtained from 1ST DIVISION. the appellant's father by John Manson. By this lease, Manson Lord Succoth. was bound to keep, uphold, and maintain the whole houses here'by set in sufficient tenantable condition during the tack, and to 'leave them so at their removal.' At the expiration of it, there were on the farm a servant's dwelling, a stable, a byre, two barns, with a kiln and an oxen house, appropriated to the principal tenant, besides cot-houses inhabited by subtenants. A new lease was granted in 1785 by the father of the appellant to Manson for 21 years, at a rent of £105, from Whitsunday, by which the tenant and his successors bound themselves to keep, uphold, and maintain the whole houses hereby set in sufficient tenantable condi'tion during this tack, and to leave them so at their removal, 'with this provision and declaration, that the timber on the several subtenants' houses shall now be appraised and valued at the sight of two neutral men, one to be chosen by cach party, and 'the like appraisement and valuation shall be made at the issue 、 Feb. 21. 1821. of this tack; and that the outgoing tenant shall pay to, or receive 'from the proprietor, or incoming tenant, according to the differ 6 6 6 ence of these valuations to be made by neutral men as aforesaid.' It was also specially provided and agreed, that in case, during 'the currency of this lease, the said John Manson or his foresaids 'shall build an additional steading on the said lands, or shall en'close any part of the grounds hereby set with stone dikes, or ' with hedge and ditch, or make any plantations of trees, at their own expense, they shall have allowance of the value of such steading, and of the value of such enclosures and plantations of trees, at the issue of this tack, from the said Sir John Sinclair ⚫or his foresaids, according to a valuation to be put thereupon at 'the term of removal by two neutral men as arbiters, one to be 'chosen by each party, whom the parties shall be obliged to name, ' and whose determination shall be final in manner foresaid.'Soon after the commencement of this lease, John Manson pulled down the old houses, and erected a new steading, (consisting of a large farm-house and extensive offices,) in the building of which he employed part of the materials of the old houses. In the mean while, the appellant, then an infant, succeeded as heir of entail to the estate; and two years thereafter, the respondent, William Manson, acquired right to the lease, on the death of his father John. At the termination of it, he required the appellant, as landlord, to nominate an arbiter, for the purpose of valuing the steading, in terms of the lease; and the appellant having failed to do so, Manson presented a petition to the Sheriff of Caithnessshire, praying him to appoint proper persons to value the houses and fences. Warrant was granted accordingly, and a proof was allowed to the appellant, and taken, as to the extent of the buildings originally on the farm at the date of entry. The inspectors reported that the value of the house and offices amounted to £758:5: 53, for payment of which sum Manson raised an action in the Court of Session. This action having been objected to on the plea of lis alibi pendens, an advocation ob contingentiam of the Sheriff Court process was brought and conjoined with it. On advising memorials, and in reference to the pleas of the parties, Lord Succoth, on the 12th of May 1815, found, That it appears from the proof adduced before the Sheriff of Caithness, that the steading upon the farm of Borrowstoun, belonging to the defender, (the appellant,) was both incomplete and in bad repair at the commencement of the lease granted in the year 1785 to the pursuer's father; and although the proof ' were not satisfactory, the stipulations in the lease, upon which 'the present question depends, afford real evidence that this was 'the case: That by an express clause in the said lease it was pro- Feb. 21. 1821. 'vided, that in case the tenant should build any additional stead❝ing on the said lands, he should have allowance of the value of 'the said steading at the issue of the tack: That no restriction is 'put upon the tenant by this clause, as to the nature or extent of 'the steading which he might build upon the farm, and that it 'did not impose an obligation on the tenant to communicate the 'plans of the intended buildings to the landlord, or to give him ❝ formal intimation before commencing them: That the pursuer's 'father did erect a new steading, consisting of a slated dwelling'house and farm-offices, which must have taken considerable time 'to erect, and that no complaint was made at the time by the 'landlord that they were too large, and not suitable to the farm, 'nor any objection made until the pursuer came to demand the ' value of the same at the expiry of the lease: That even after 'the cause came into this Court, the objection stated by way of ' defence was, not that they were too large for the farm, but that 'the expense exceeded ten years' rents, (which does not seem to 'be true in point of fact): That although, by a clause in the 'lease, the tenant was bound to keep the whole houses upon the 'farm in sufficient tenantable condition, yet that, according to a 'fair and rational construction of this clause, he was not bound 'to maintain old houses after he had built new ones sufficient for 'the farm; and therefore that the argument in defence, founded upon a supposed breach of covenant in this respect on the part ' of the pursuer, is not well founded: That as the interest of the money laid out in building the new steading would be at least equal to the sum which it would cost the tenant to keep the old steading in repair, the defender is not entitled to insist for any 'deduction on account of the pursuer having been saved the expense of keeping the old houses in repair: Therefore, as the reports and valuations, which were made by tradesmen appointed 'by the Sheriff, are not objected to, and appear to have been 'made after a minute examination of the premises, finds the de'fender liable in the sum of £758:5: 52, being the amount of 'the valuations of the houses, with interest from the expiry of the ‘lease, viz. Whitsunday 1806.'-To this interlocutor the Court, on the 14th of November 1816, adhered, and issued an interim decree for £700; and they refused a petition, without answers, on the 12th of December thereafter.* 6 6 Against these judgments Sir J. G. Sinclair appealed, 1. Because they proceeded upon a misinterpretation or misconception * Not reported. |