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 When a tenant enters to grass lands at Whitsunday, which were afterwards ploughed by the master's consent, Can he be removed at the term of Whitsunday, or is he entitled to the outgoing crop?

Alexander Brodie of Windiehills
v.
William Murdoch

Date: 26 November 1776

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[Faculty Collection, VII. 372; Dict., App. I., Tack, No. 3.]

Auchinleck. Whenever ground is once set a ploughing, it becomes arable as much as any part of the farm.

Monboddo. The master has himself to blame in not making that paction which he would have the Court to make.

Kennet. The tenant entered at Whitsunday, and so had the grass of that year. According to his argument he will have four years' possession, and yet pay only three years' rent.

Hailes. This case may frequently occur in practice. When a master gives permission of ploughing up grass without making any prudent limitations, in such case he may suffer in the end, and the tenant may profit; but that is the fault of the master in not making a more judicious bargain. The permitting a tenant at will to break up meadow, is in itself no very prudent or consistent thing.

Covington. The tenant might at any rate have ploughed up the meadow, for it had been formerly ploughed up for nine years successively. It is an invincible argument in favour of the tenant, that, if the master's argument is good, he might have removed the tenant at the first year: What then would the tenant have got? No profit, but, on the contrary, loss.

Gardenston. The circumstance which touched me, is, that every inch of ground was ploughed: which is gross mislabouring. What the Sheriff did was a just reparation to the master.

Monboddo. This piece of ground happened to be in grass, it was ploughed up in rotation. What was there to hinder a tenant from doing this? The present action is not for mislabouring: that action may be reserved to the master.

Auchinleck. If action for mislabouring is reserved, we ought, in the meantime, to find expenses due by the master for mispleading.

Kaimes. A tenant cannot plough up old grass reserved for the cattle of the farm. But I doubt whether this meadow can come under the denomination of old grass; but, let that be as it will, in common law a bargain is a bargain. Here the tenant was at will, and had liberty to plough: it is impossible that the master could turn him out directly.

On the 26th November 1776, “The Lords assoilyied the tenant;” adhering to Lord Elliock's interlocutor.

On the 26th January 1777, “The Lords altered.”

Act. Ilay Campbell. Alt. B. W. M'Leod.

Diss. Gardenston, Kennet, Alva. Diss. at second hearing, Elliock, Stonefield, Hailes.

Non liquet, Covington.