What degree of sterility will relieve from the tack-duty.
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In January 1755, Foster and Duncan let to Adamson and Williamson a salmon-fishing in the river Tay, opposite to Errol, on the north side of a shallow named the Guinea-bank, to endure for five years. The river there is broad; but the current, being narrow, past at that time along the north side of the bank, the rest of the river being dead water. As one cannot fish with profit but in the current, the tacksmen made large profits the first two years, and were not losers the third; but the fourth year the current changed, which frequently happens in that river, and instead of passing as formerly along the north side of the bank, it past along the south side, which was a part of the river set to other tacksmen; by which means the fishing let to Adamson and Williamson became entirely unprofitable the remainder of their lease.
The granters of the tack having brought a process against the tacksmen for L. 36 Sterling, being the tack-duty for the two last years, the defence was, a total sterility by the change of the current as aforesaid; and a proof being admitted, the facts appeared to be what are above mentioned.
It is admitted for the pursuers, that the extinction of the subject must have the effect even at common law to put an end to a lease; because the lease having a special relation to a subject which is to be possessed for rent, it cannot subsist when there remains no subject that can be possessed; as for example, when land is swallowed up by the sea, or when a river totally changes its course, and never returns to its former channel. The case is different in sterility whether of land or of fishing; for there the subject remaining in existence, is still capable to be possest by the lessee; and consequently the lease subsists and the rent is due, however unprofitable the possession may be. If therefore there be any relief in the case of sterility, it must be upon equitable considerations; and whatever may be thought with respect to a total sterility during the whole years of the lease, or during the remaining years after the lease is offered to be given up, the sterility here was temporary only; for, as the stream of the river Tay is extremely changeable, it might have returned to its former place in a month or in a day; and as the tacksmen adhered to the tack, and did not offer to surrender the possession, they certainly were in daily expectation that the current would take its former course. That such a temporary sterility cannot afford a defence in equity against payment of the rent, will appear from the following considerations; 1mo, A lease puts the lessee in place of the landlord as to profit and loss; the profit is his without limitation, and so ought the loss: Cujus commodum ejus debet esse incommodum is a rule in equity that holds with the greatest force in a lease where the lessee draws all the profit, if it should be ten times his rent, and on the other hand can never lose more than his rent. 2do, There can be no equity in sustaining the defence after the lease is at an end; for at that rate, the tenant has a fine game to play: If the sterility continue to the end of the lease, the tenant takes advantage of the equitable defence to get free of the rent; but if fruitfulness be restored, he takes advantage of the lease, and makes all the profit he can. The landlord by this means continues bound, while the tenant is free, which is repugnant to all the rules of equity as well as of common law. 3tio, At any rate, the tenant cannot pick out one or other sterile year to get free of that year's rent; if he have any deduction in equity, it must be upon computing the whole years of the lease; for if he be a gainer upon the whole, which is the present case, he has no claim in equity for any deduction. It carried however to sustain the defence of sterility, and to assoilzie the defenders from the rent due for the last two years of the tack.
Though this judgment seems not better founded in equity than at common law, it was however easy to discern what moved the plurality. In a question betwixt a rich landlord and a poor tenant, the natural bias is in favour of the latter: The subject in controversy may be a trifle to the landlord, and yet be the tenant's all. I urged this in Court, and put a case opposite to that under consideration. A widow woman, with a numerous family of children, has nothing to depend on but her liferent of a dwelling-house and of an extensive fruit orchard. These she leases to a man in opulent circumstances, for a rent of L. 15 for the house and L. 25 for the orchard, which he possesses with profit on the whole. The orchard happens to be barren the two last years of the lease, and he claims a deduction upon that account. No man would give this case against the widow. So much do extraneous circumstances influence the determinations of a Court, even where the Judges are not sensible of being influenced by them.
I am not certain but that some of the Judges considered this as a rei interitus to afford a defence at common law; a very great mistake, as a thing cannot be understood to be totally destroyed, where we have daily hopes of its being restored to its former condition.
