The Earl of Northesk and Factor v. Patrick Rolland and Others
Date: 2 February 1797 Case No. No. 134.
A tenant who had a lease for fifty-seven years, with power to subset or assign, having granted a sub-lease, was found not entitled to carry off from the farm the fodder which had been raised on it the crop preceding the entry of the sub-tenant.
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In 1763, the proprietor of the farm of Cairnton granted a lease of it for fifty seven years, to John Johnston, “his heirs, successors, assignees, and subtenants.”
The lessee became bound ” to labour, manure, and sow the lands hereby set sufficiently,” and also to follow a particular mode of cultivation during the last seven years of the lease.
The farm was repeatedly subset, and Patrick Rolland having, in February 1796, obtained an assignation to the principal lease, he, in April thereafter, granted a sublease of a great part of the lands for the whole period of his own right.
The entry of the subtenant to the arable land was declared to be at the separation of crop 1796 from the ground.
Mr. Rolland having previously let part of the lands for crop 1796, for tillage, with power to the tenants to carry the fodder off the farm, the Earl of Northesk, now the landlord, and his factor, in August 1796, presented a petition to the Sheriff of Forfarshire, stating the fact, and also that Mr. Rolland did not intend to consume on the farm that part of the crop which remained in his own hands. The petitioner, therefore, prayed that Mr. Rolland and his tenants might be prohibited from carrying off any part of the fodder from the farm.
The Sheriff found, “that an outgoing tenant is entitled, unless restricted, to remove or sell his crop, and assoilzied the defenders.”
In an advocation brought by the pursuers, in which they founded on the case. Pringle, No. 24. p. 6575. voce Implied Obligation, the Lord Ordinary “decerned in terms of the libel before the inferior court.”
The defenders, in a reclaiming petition,
Pleaded : From the great length of the original lease, and from its being granted to assignees, and subtenants, it must have been foreseen by the parties, that it would be frequently transmited. And as a tenant has power to carry off the crop which precedes the expiration of his lease, so in this case it must have been an implied condition, that the tenant was to have power to carry off the fodder of that crop with which his possession was to end, in consequence of a sub-lease or assignment. Nor can the landlord suffer by this, as the new tenant will, for his own sake, take care to bring with him manure sufficient for the proper cultivation of the farm, for his first year’s occupation of it.
Observed on the Bench: The original lessee could not have carried off the fodder of the crop in question, and his assignee or subtenant can have no higher right. Were the doctrine of the petitioners well founded, the fodder might be constantly carried off, by means of annual sub-leases.
The Lords refused the petition, without answers.
A second reclaiming petition was also refused, (21st February) without answers.
Lord Ordinary, Stonefield.For Petitioners, H. Erskine, Corbet. Clerk, Colquhoun.
Fac. Coll. No. 15. p. 36.
