Scottish Court of Session Decisions

This was a case in which Mr Sinclair of Forss sued his tenant in the lands of Mains of Brimms for implement of an obligation in the latter's lease, by which the tenant became bound to pay interest on improvement expenditure to be made by the landlord, at the rate extracted by the Scottish Drainage Improvement Company. There were two questions at issue—one as to the amount of the capital sum expended by the landlord, and the other as to the meaning of the term interest, which was on the one hand contended to be equivalent to rent-charge, and on the other to denote merely the proportion of the rent-charge which was properly

Page: 614↓

interest. The Court disposed of both points some time since; and, with reference to the latter, their judgment was that interest meant not rent-charge, but proper interest. The pursuer now lodged a minute of reference, referring to the defender's oath, whether the agreement truly come to between the them was not that the tenant should pay the whole rent-charge, and whether the term interest was not used erroneously to express that meaning.

Gordon, Q.C., and Black, for the defender, objected to this reference on two grounds—(1) that it was incompetent to contradict the terms of the written agreement; (2) that it was incompetent to make a partial reference after final judgment.

Millar, Q.C., and John Marshall for pursuer.

The Court unanimously sustained the reference. They held that it was competent by the oath of party to establish that in a certain particular the written instrument did not truly set forth the agreement actually come to; and, with regard to the alleged lateness of the reference, they held that the point here proposed to be referred was one which would he conclusive of a distinct and separate part of the cause, and which, therefore, would not be the beginning of a new litigation, as in the ordinary case of a partial reference after final judgment.