Scottish Court of Session Decisions

Hill became tacksman of the tolls on the Possil turnpike-road, near Glasgow, from Whitsunday 1834, to Whitsunday 1835, at a rent of £40 per month, for which he and two cautioners granted bond. The articles of roup, inter alia, bore this condition—“that no suspension or stay of diligence whatever shall be competent of any charge of horning, or of any execution of diligence whatever, at the instance of the said trustees or their clerk, for payment of any of the instalments of rent due, or to become due under these articles, or contained in the bond or bill to follow hereon, upon any grounds of law, or by reason of any alleged compensation or counter-claims whatever, until such grounds of compensation or counter-claims are constituted and ascertained, by a regular and extracted decreet in an ordinary action against the trustees or their clerk, which it is specially provided shall be the only mode by which it shall be competent to urge any claims by the tacksman against the trustees, on account of any matter or thing arising out of these articles, and the set of the said toll-duties.”

Hill entered into possession, and paid the first month's rent; but, when the second fell due, he objected that a part of the road, by the operations of the trustees, had become impassable, and that, in reality, it was only in the course of being made turnpike, being a branch newly included in the turnpike act, and only in course of being made 20 feet wide, which was essential to its being a turnpike road; and on a charge being given to him and his cautioners by Gordon, clerk to the trustees, for payment of the rent of that and the two succeeding months, they presented a bill of suspension, on the ground that he had not been put in possession of the subject of the lease; and, consequently, was entitled to retain the rent, to enforce implement by the trustees of their obligations. He at the same time offered consignation of the rents due, In answer, Gordon pleaded, that Hill's claim was truly an illiquid claim of damages, which was incapable of forming a ground of retention of the rent both at common law and under the special condition of the articles of roup, which was not of the nature of a pactum illicitum, as an obligation that no suspension at all should be allowed, but was merely a provision to enforce the ordinary rule of law.

The Lord Ordinary refused the bill, adding the subjoined note. ^*