Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk of Session, One of The Reporters For The Faculty.
Subject_2 MASTER AND TENANT.

Sir Robert Pollock
v.
Thomas Paton

Date: 29 July 1777

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Sir Robert Pollock, having set grounds to a tenant, for one year, tied him up from ploughing more than a certain part of them, under this declaration, that if he (the tenant) transgressed the prohibition, he was to pay £100 Scots for every acre over ploughed. The tenant did transgress, and did plough more than the part permitted: whereupon Sir Robert claimed the £100 Scots per acre for the ground over ploughed; and alleged, that this was due, not in the light of a penalty,—otherways, perhaps, it might have been subject to modification, on the footing of restricting conventional to real damage,—but that it was due to him as additional rent, and subject to no modification. At the same time, he owned, that the missive of tack did not expressly call it additional rent, or even rent, but set it forth in the terms above mentioned.

The point was reported by Mr Dalrymple, Lord Probationer. The Lords, 10th July 1777, thought it of great and general consequence. They ordered memorials; and this day, upon advising, they pronounced this interlocutor:— “ Advocate the cause, (from the Sheriff of Renfrew, who had found the condition penal, and that therefore the same was to be restricted to real damage,) and find the defender, in terms of the clause in question, liable to the pursuer in ₤100 Scots per acre, and so proportionally for one acre, one rood, and 28 falls of ground over ploughed; but under deduction of a proportional part of the whole rent of the farm effeiring to said ground; which deduction, of consent modify to 20s. sterling per acre, and so proportionally; but find no expenses due, and decern.”

As to this last point. The agreement with the tenant was inaccurate: it did not say that the ₤100 Scots per acre was additional rent, or even rent.— The Lords held it to be rent, but no additional rent, therefore they gave deduction of a proportion of the general rent.

See, on this point, Ralfe against Peterson, decided in the House of Lords, 18th February 1772.

See Principles of Equity, 3d edit. V. II, p. 54.