Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. VII.

Between Landlord and Tenant.

Earl of Eglinton and his Curators,
v.
The Tenants of the Baronies of Kilmares, Roberton and Dreghorn

Date: 3 December 1742
Case No. No 64.

What damage sufficient to free tenants from payment of rent.

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An uncommon storm of hail having happened in the year 1733, in that corner of the shire of Ayr, where the above baronies lie, whereby great damage was done to the Tenants who possessed corn-farms, and the Earl's Curators not thinking it safe for them to give deduction of the rents without authority, they pursued the Tenants before the inferior court; and the Tenants, after proof led, brought the matter before the Lords by advocation. At discussing whereof, it was found, “That no rent was due by such of the Tenants as had proved that they reaped no more than about the value of their seed and labour.”

Kilkerran, (Periculum.) No 2. p. 376. *** C. Home reports this case:

The Earl pursued these Tenants for the rents of their possessions, crop 1733.

The defence was, That there happened, in the month of June that year, an extraordinary storm of hail and rain, accompanied with thunder and lightening, which destroyed and laid waste almost their whole corns; that the calamity was general, though it fell with a particular violence on the defenders, in so much that scarce any of them reaped what was sufficient for defraying the expense of seed and labour; consequently, as there was no crop, the defenders could be liable in no rent. And a proof having been allowed, and led, the most of the defenders proved their defence. Answered, The whole of the proof was a circle of the several defenders deponing for one another; every man depones for his neighbour, and his neighbour for him. 2dly, It was said not to be a settled point amongst the Doctors, whether even a total sterility for one year does afford the tenant, who has a lease for several years, any claim of deduction on account of the sterility of that particular year? And whether he ought not to compensate the loss of one year with the profit of another, seeing, in all such matters, there is an evident chance, which each party runs the risk of? But as the pursuer is sensible the defenders suffered, he is willing to give the same allowance the rest of the gentlemen of the county gave to their tenants, scil. a half year's rent.

Replied to the first, That all the witnesses were persons of entire credit, men of substance for persons of their degree, and possessing by tacks; that none had sworn to his own loss, and swearing to his neighbours, could be no proof as to him; so the proof for each must be taken by itself. And to the second, it was answered, That what the defenders had reaped would not defray the expenses of seed and labour; consequently there was no crop, as nothing is be understood in law to be in fructu, until deduction of the charges of gathering and in-bringing the fruits. See 1. 46. D. De usuris et fructibus. Voet § 25. tit. Locati. l. 25. § 6. eod. tit.

The Lords found no rent due by such of the defenders who proved, that they reaped no more than about the value of seed and labour.

C. Home, No 213. p. 354.