Scottish Court of Session Decisions

This suspension and interdict is directed by the Duke of Portland against the Messrs Baird of Gartsherrie, and its object is to have them prevented from working the seams of coal and the ironstone in certain lands forming part of the estate of Kilmarnock, which were let by the complainer by a tack or lease, dated 29th and 30th November 1852, to Mr Lancaster and Mr Cookney. By the lease of the mineral field in question, the field is let “to the said William Lancaster and James Thomas Cookney, and their heirs and successors, or to their assignees and sub-tenants, but under this condition always, that if the tenants shall desire to assign this lease, or to subset the premises thereby let, the assignation or the subtack shall be, and shall only be, with the written consent of the proprietor, or his successors; and the tenants herein, and their heirs and successors, shall notwithstanding of any assignation or subtack continue bound, along with the assignees and sub-tenants, for the rent or loyalties, and implement of the whole stipulations of this lease.” Lancaster & Cookney having carried on the business for some time, dissolved it, and assigned the lease, with consent of the landlord, to Messrs Lancaster & Freeland. This firm having got into difficulties, handed over their interest to a trustee for behoof of their creditors, who assigned the lease to the Messrs Baird—the present respondents. The Duke of Portland refuses to take them as tenants except upon a condition which the Messrs Baird decline—that they shall ship all the iron which they make to Troon, the Duke's port; and the question that arises in the case is whether, under the right which the landlord reserved to himself of withholding his consent in the original lease, he is entitled to annex such a condition as that which the Duke of Portland proposes to impose on the Messrs Baird.