Scottish Court of Session Decisions

This was a suspension of a charge at the instance of Mr Holdsworth of Coltness. In 1816 a tack was entered into between the former proprietor of Coltness and the predecessor of Gold, whereby the latter became lessee of a small piece of ground in the parish of Cumbusnethan for 999 years.

The tack contains, inter alia, a clause in the following terms:—“Declaring always, as it is hereby expressly provided and declared, that the said Janet Wilson and her foresaids are hereby prohibited and debarred and discharged from keeping a public house, or selling liquor of any kind at any time during this lease, without a special licence or authority in writing, from year to year, from the said General Sir James Stewart Denham, Baronet, or his foresaids, for that purpose, other-ways to pay £10 sterling of additional rent for each time they shall be found guilty of keeping such house, or selling any kind of liquor, and that at the first term of Whitsunday or Martinmas which may occur thereafter, with interest thereof after said term, and a fifth part farther of additional penalty in case of failure.”

The question turned on the proper construction of this clause.

The suspender pleaded, inter alia, —“According to the true meaning and construction of the said clause, the lessee is entitled to keep a public-house, if he chooses to do so, and obtains the necessary licence from the authorities, on paying the additional rent stipulated.”

The respondent pleaded, inter alia, — On a sound construction of the clause of the tack quoted in the second reason of suspension, the prohibition therein set forth is an absolute prohibition against keeping a public-house, or selling liquor of any kind, without special licence from the lessor; the £10 additional rent therein stipulated is a penalty for each infringement of the said prohibition; and, under the said clause the suspender has not the option of contravening the prohibition on payment of £10 additional rent.”

The Lord Ordinary (ORMIDALE) pronounced this interlocutor:—“The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, sustains the second plea in law for the respondent, and in respect thereof repels the reasons of the suspension: Finds the letters and charge orderly proceeded, and decerns: Finds the respondent entitled to expenses; allows an account thereof to be lodged, and remits it, when lodged, to the auditor to tax and report.

“Note.—The only question that was discussed before the Lord Ordinary, and it may also be said the only real question in the case, is that involved in the respondent's’ second plea in law, which has now been sustained.

“The Lord Ordinary has found it impossible to adopt the construction contended for by the complainer of the clauses in the lease in question upon which the controversy turns. He cannot think that it was either the intention of the parties to the lease, or that it is the sound construction of the terms in which their contract is expressed, that the tenant was to have the election or option, just as he pleased, of keeping a public-house on the premises, with or without the leave of the landlord, provided he paid an additional rent of £10. On the contrary, the Lord Ordinary thinks it clear, on a consideration of the lease, and especially of the clause more immediately in dispute, that the latter contains, and was intended to contain, an absolute prohibition against the tenant keeping a public-house without a special license or authority in writing from the proprietor, and that the stipulation as to the payment of £10 additional rent for each time the tenant should ‘ be

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found guilty of keeping such house,’ was intended, and can only be construed as a means of enforcing obedience to the prohibition. In any other view, the prohibitory terms of the clause would be altogether useless and unmeaning; for, according to the com plainer's’ contention, it must be read in the same way as if it had been expressed to the effect that the tenant was to pay a rent of £2, 13s. 4d. so long as he did not keep a public-house, and £10 during the time he did so.

That, however, is not the way in which the contract of parties is expressed. The tenant is, in the most emphatic terms, ‘ prohibited, debarred, and discharged ’ from keeping a public-house without the special license or authority in writing of the landlord; and the Lord Ordinary cannot think that this prohibition so expressed must go for nothing, in the option of the tenant, his heirs and assignees, in consequence of the expressions which are used,—1 or otherwise to pay £10 of additional rent for each time they shall be found guilty ’ of keeping a public-house. The complainer might as well contend that, under the clause which immediately follows, binding him and his dependants to flit and remove at the end of the lease ‘ or other-ways,’ to pay the landlord ‘£50 sterling of additional rent for each year they shall hold possession of any part thereof thereafter, until removed,’ he would, in his option, be entitled to continue in possession so long as he paid the additional rent of £50. But any such contention would be untenable, as has been settled by the decisions of the Court in the cases of Cross v. Muirhead, 23d May 1813, Hume 860; Campbell v. M‘Laren, 13th June 1814, Hume 864.

“Various other cases were cited by the parties in the course of the debate before the Lord Ordinary, but he thinks it sufficient, in addition to the cases already mentioned, to refer to that of Mackenzie v. Craigies, 18th June 1811, F.C., where the Court held that a clause in a tack binding a tenant to a certain mode of management, or to pay an additional rent, did not give the tenant an option to violate the stipulated condition at pleasure, the stipulation being interpreted to import a penalty, and not an additional rent, in the ordinary sense of that expression. This is the principle now adopted and given effect to by the Lord Ordinary, in circumstances which appear to him much more favourable for its adoption than those of the ease now referred to.”

The suspender reclaimed.

Millar, Q.C., and Burnet for him.

Solicitor-General and Moncrieff in answer.

The Court unanimously adhered.