Mar. 3. 1826. cases were referred to, which it is not necessary for me to state to your Respondents' Authorities.-2 Erskine's Institutes, 2, 5-14, 16, 17. 3 Ersk. 8, 52.- Appellants' Authorities.-Arbuthnot v. Arbuthnot, 23d June 1773.—(5225)—M‘- CLAYTON, SCOTT, & CLAYTONA. MUNDELL, Solicitors. No. 7. March 8, 1826. tie. JAMES MILLER, Appellant.-Keay—Abercrombie. Landlord and Tenant-Penal Rent.-A tenant having entered to possession of a MILLER received from the factor on the Perth estate an offer 2D DIVISION. of lease of the farm of Leystone for nineteen years. The offer Lord Cringle contained this, among other clauses :- With regard to the ge'neral mode of managing the farm, you shall always have one 'third part of the arable land under green crops and summer fallow, (the fallow uniformly getting four ploughings, and not 'less than twenty bolls of lime-shells laid on the acre,) and Mar. 8, 1826. 'shall not plough the same field more than twice for a white crop; and during the last three years of the lease you shall only have the one-third part of the arable land in crop and tillage, the other two-thirds shall be in grass, and which shall 'be cut only one year for hay, and pasture the other two. And 'should you fail to leave these two-thirds of the arable land, 'all or any of these three last years laid down in good heart, ' and properly sown with ryegrass and clover, or contravene · any of the other regulations before laid down, then, for every ' acre managed otherwise than as above directed, you shall pay an additional rent of £4 Sterling per acre, for each year so mismanaged.' The lease was to commence at Martinmas 1801, and it was stipulated that, when it suited the conveniency of the proprietor, a regular tack should be extended, but that Miller's acceptance should in the meanwhile bind him. 6 Miller accepted this offer, and entered into possession. No regular tack, however, was extended, and he alleged that no copy of the missive was delivered to him. He did not pursue the rotation prescribed, but adopted that followed by and prescribed to the other tenants on the estate; and no objection was made, although the farm was annually visited, and he received several agricultural premiums from his landlord. The rent of the first of the last three years was discharged, and the farm was not in bad order at the conclusion of the tack. During the last year of the lease, an action was raised against him by his landlord, before the Sheriff of Perthshire, founded on the missive, and averring that he was bound, during the last three ' years of the lease, to have only the one-third part of the arable land in crop and tillage, and the other two-thirds in grass, 'which shall be cut only one year for hay, and pasture the ' other two, and also to have always one-third part of the land ' under green crops and summer fallow, the fallow uniformly 'getting not less than four ploughings, and twenty bolls of lime'shells laid on the acre;' and alleging that the stipulations had been contravened, and therefore concluding for the additional rent and damages, for miscropping, in so far as the tenant had 'not for the present, or the two last years, the stipulated quan'tity of grass or fallow, nor has the fallow received the stipula'ted quantity of lime.' The Sheriff, after various proceedings, and finding that the rent for 1817 having been discharged by the pursuers, no claim for that year could be maintained, found, that the obligation on the defender in the missive of lease to have always one-third Mar. 8, 1826. ' part of the arable land under green crops and summer fal'low, cannot be held applicable to the three last years of the 'lease, the obligation respecting which is to have only one'third part of the arable land in crop and tillage, and other "two-thirds in grass, which shall be cut only one year for hay, ' and pastured the other two; that the defender had not established that the pursuer Lord Gwydir, or any other person ' having authority to do so, approved of the mode of manage⚫ment adopted by the defender, so as to preclude the pursuers 'from insisting for implement of the conditions of the missives of lease of the farm of Leystone, where the mode of manage'ment subsequent to crop 1817 was inconsistent with the said ' conditions—that although the missive of lease is not a regu'lar lease, duly extended by a man of business, the conditions ' as to cropping during the three last years are precise, and not inconsistent with the other clauses as to two white crops) since the defender, by the introduction of green crop or summer fal'low, might easily have satisfied that stipulation); and this in'terpretation arising out of the plain words of the missive, is ❝ still farther strengthened by the subsequent clause, “and should "you fail to leave these two-thirds of the arable land, all or any "of these three last years laid down with rye grass and clover" -implying that the grass was to be three years old, otherwise that there would be a contravention;' and appointed the pursuer to give in a state pointing out the contraventions by the defender for the two crops 1818 and 1819. Thereafter the Sheriff found the deficiency of pasture grass to be 35 acres, and 53 decimals; and decerned, at the stipulated rate of £4 per acre of additional rent, for £142, 2s. 4d., with expenses of process.. Miller having advocated, and the Lord Ordinary having remitted simpliciter with expenses, he petitioned, and the Court, on the 2d March 1824, adhered as to the rents, but altered as to the expenses; and, on the 26th May 1824, refused a reclaiming petition, without answers.* Lord Craigie.-I think that the tenant has been hardly dealt with. In the early part of the lease he was permitted, with the approbation of the landlord, to carry on a different rotation from that which had been prescribed; and even as to the three years, no objection was made till May 1819, being the last year. I therefore think that it is not just to subject the tenant in the penal rent; and that, in the circumstances, some notification should have been given to the tenant. Besides, the cultivation Sce 3, Shaw and Dunlop, No. 44. which was followed was beneficial, and was similar to that which Mar. 8, 1826. was prescribed in the extended leases of the other tenants on the estate. Lord Pitmilly.-This is certainly a hard case, but I do not think that we can alter the interlocutor. The first question is, What is the construction of the clause? If it had been unintelligible, and the mode prescribed impracticable, the tenant should have objected at the commencement of the lease; but he did not do so; and it appears to me that the Sheriff has put the correct interpretation on the terms of it. The management for the last three years was to be different from that of the preceding period, and we are bound to give effect to that which was stipulated by the landlord. The second question is, Whether the landlord has precluded himself, by acquiescence, from making his present claim? He has certainly done so for the year of which he received and discharged the rent; but there is nothing to cut off his claim for the two subsequent years. Lord Glenlee.—I see no reason for departing from the Sheriff's interlocutor. Lord Robertson.-I am of the same opinion. Lord Justice Clerk.-I cannot put the same meaning on the tack which has been done by Lord Gwydir in his summons. We must hold the agreement as to the three last years to be separate from the general system, which applies to the sixteen preceding years. With regard to the first of these three years, the discharge of rent frees the tenant. It is clear that, for the sixteen years, the tenant carried on a different course of cultivation from that which had been prescribed, and that this was followed during the seventeenth year. Now, although the landlord saw that the tenant had not complied with the provisions relative to the three last years, yet he granted to the tenant a full discharge for this, which was the first of the three years, and he gave the tenant no warning that he was not proceeding in this course until the year 1819, when it was no longer possible to adopt it. I think that the landlord was bound in good faith to give that notice, and as it is not denied that the farm has been left in as good condition as any in the barony, I cannot adhere to the interlocutor. Miller appealed. Appellant.-The Sheriff's judgments adhered to on the merits by the Court of Session, are inconsistent with the terms of the summons, and his interpretation of the missive is widely different from the respondent's. Instead of loss from the appellant's Mar. 8, 1826. management having arisen to the landlord, the system has been most beneficial and advantageous, much more than could possibly have been the case under the directions of the missive, which indeed were absurd and unintelligible. The appellant worked the lands like a skilful agriculturist, and his skill was acknowledged by his landlord. Besides, the landlord acquiesced in the management adopted. Respondent. The stipulations of the lease are intelligible to any practical agriculturist. The respondent did not, before the Sheriff, press the conclusion as to want of fallow with lime, during the three last years. The regulations were satisfactory to the landlord (who had a right to dictate them) and to the tenant, at entering into the lease, and must be fulfilled. The question is not as to good or bad management, but as to the obedience to the rules agreed upon. There was no consent by the landlord to depart from them, nor any acquiescence in the unwarranted management followed by the tenant. The House of Lords ordered and adjudged that the interlocutors complained of be affirmed, with £50 costs. LORD GIFFORD.-My Lords, having heard the argument of the learned counsel, it does not appear to me that the Court of Session have made any mistake in this case. This was an action by my Lord Gwydir, against Mr Miller, who was his tenant, for a breach of covenant in respect of the lands held by him under lease. It appears that he stipulated by that covenant, that he would have, during the last three years of the lease, only one-third part of the arable land in crop and tillage, and that the other two-thirds should be in grass, and which should be cut only one year for hay, and pastured the other two. It was contended, before the Sheriff of Perthshire, (before whom this case originally went,) that the tenant had not a sufficient quantity of grass upon his farm to comply with his cove nant. The summons, after stating the covenant into which the tenant had entered, concludes in these terms: That by the said lease, which expires ' at the term of Martinmas first, the said James Miller is taken bound, during the last three years of the lease, to have only the one-third part ' of the arable in crop or tillage, the other two-thirds in grass, which shall 'be cut only one year for hay, and pasture the other two; and also to have ' always one-third part of the lands under green crops and summer fallow, the fallow uniformly getting four ploughings, and not less than twenty 'bolls of lime-shells laid on the acre.' It alleges, first, that there was not a sufficient quantity of grass; and, secondly, a deficiency of fallow and The lease having provided an increased rent of £4 an acre in case of contravention of any of the covenants, my Lord Gwydir claimed that increased rent. manure. |