(1780) 2 Paton 516a
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Irritancy of Lease — Penalty.—
A lease provided, that if two terms rent were allowed to be “resting and owing unpaid at one time, the tack should eo ipso become void and null,” with a fifth part more of termly moiety in case of failure. The tenant fell four years in arrear of rent. In an action brought under the annulling clause in the lease: Held the irritancy purgeable at the bar; and that the penalty, in case of failure of a fifth part more, was not exigible.
Gordon had a lease from Hogg, of the farm of Ramoir, the stipulated rent of the first two years being £160, and for the remaining years of the lease £200. The lease bound the tenant to pay this rent, “and so on yearly thereafter, during the continuance of this lease, together with
April 7, 1776.
July 15, 1778.
The tenant fell four years behind in arrear of his rent, and action was raised, reciting the above clause in the lease, stating, that, in terms thereof, he had fallen four years in arrear of his rent, and that the lease was thereby void and null, and concluding to have him removed. The sheriff allowed the tenant to purge the irritancy of the lease, by consignation of the whole arrears of rent, with interest due thereon. Against which interlocutor, an advocation was brought, in which the Lord Ordinary advocated the cause, and “assoilzed the defender from the conclusions of the removing in consequence of the clause of irritancy in the tack, granted by Robert Hogg to Robert Gordon, libelled; repels the articles of compensation claimed by the defenders, amounting to £22. 15s. 7d., in respect it appears from the discharges produced, that these payments were made to the pursuer for the rents of 1771. Finds the defenders liable in payment to the pursuer Robert Hogg, of the rents of the lands libelled, with interest of the same, from the several terms of Whitsunday and Martinmas, at which payment is stipulated to be made, by the tack libel-led, and the liquidate penalty as contained in the tack.”
Jan. 16, 1779.
Jan. 28, 1779.
Both parties having reclaimed, the Lords found “the petitioner (Mary Hogg) liable annually in a sum equal to the legal interest of the £22. 15s. 7d. within mentioned, from and since the term of Whitsunday 1773, and in time coming, till payment of the bygone rents in question; but find no interest due on the said bygone rents, and in case the said rents are paid to the pursuer, on or before 29th January current, find that the bygone liquidate expenses for each term's failure are not due, or incurred, and decern; and, with the above variations, adhere to the interlocutors of the Lord Ordinary, reclaimed against, and refuse the desire of both petitions.” On reclaiming petition the Court adhered.
Against these interlocutors of 15th July 1778, 16th and 28th January 1779, the present appeal was brought.
Pleaded by the Appellant.—1st, The first question is, whether, in terms of the lease, the appellant is entitled to
Pleaded for the Respondent.—1st, By the law of Scotland, penal irritancies are never interpreted with rigour, and every equitable consideration is admitted to negative their exaction. Here a counter claim was the cause of the tenant refusing his rent, payment of which was offered, on condition of retention being allowed for it. He was, besides, prohibited from paying his rents, by an action raised by the superior, to compel the landlord to enter vassal with him, or to forfeit his right, which action being served on Gordon, was equivalent to an interpellation from paying the rent to him. The interest and penalty, in name of expenses for such year's failure, ought not therefore, in these circumstances, to be demandable. 2d, The irritancy contained in this lease, is the most rigorous that can be devised, or attempted to be enforced. If two years rent become in arrear, it declares the
After hearing counsel, it was
Ordered and adjudged that the interlocutors complained of be affirmed.
Counsel: For the Appellant,
For the Respondent, Ilay Campbell.
Note.—This case not reported in Court of Session.