Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TACK.
Subject_3 The effect of a Paction that the Tenant should pay at the rate of L.100 Scots per Acre, in case he should plough more than a certain given quantity.

Sir Robert Pollock
v.
Thomas Paton

Date: 29 July 1777

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[Fac. Coll. VII. 468; Dict. App I. Tack, No. IV.]

Monboddo. A stipulation for an interesse is here liquidated, and the Court cannot interpose.

Elliock. This is plainly a conventional stipulation, “If you let the land remain in grass, you shall pay so much,—if you plough it, so much more.”

Gardenston. This is not a penalty but a paction: the clause does not properly stipulate a rent. It would be ruinous to the improvement of the country were such clauses held elusory.

Covington. I do not well know the foundations of the nobile officium of the Court of Session; but this is certain, that by it the Court does modify penalties. This covenant is calculated to elude the nobile officium of the Court. If the L.100 Scots bore any proportion to the value of the subject, it ought to be found exigible; but that is not the case, and therefore the provision is penal, just as if L. 100,000 had been stipulated. The argument of the landlord concludes for L.100,000, if that had been mentioned, as much as for L.100 Scots.

Braxfield. I have often thought of this question, and was clear in my determination. Here there, is a lawful covenant, and parties must be bound by it. Parties are entitled to put a pretium affectionis on their property. It is not reasonable to restrict this to the quantum of patrimonial damage. When we speak of equity, there is a great difference between an obligation aliquid præstare and aliquid non facere. As to the first, a court of equity might be apt to interpose, because a man, through accident or misfortune, might be prevented from fulfilling; but as to the second, when I say, “You shall not do so or so,” is there, or can there be any accident or misfortune that may prevent the fulfilling of that contract?

Justice-Clerk. If the nobile officium were to interfere here, the consequences would be destructive to the country. If the estimate had been absurdly high in the case of ploughing up the grass, the court might interpose to render the bargain intelligible.

President. The case is simple. There is no penalty, for there is no transgression. The man is allowed to plough, and he does plough: let him therefore pay, according to covenant. A master may let his ground under any conditions not reprobated by law. If the claim is not held good, how can tenants be kept to their covenants?

On the 29th July 1777, “The Lords decerned for L.100 Scots per acre with deduction of the rent corresponding to each acre, according to the tack;” which they modified to twenty shillings per acre.

Act. Ilay Campbell. Alt. G. Wallace. Reporter, Mr David Dalrymple of Westhall, Lord Probationer.