Scottish Court of Session Decisions

This was an action by R. S. Frier against the Earl of Haddington, concluding for certain sums, amounting in all to £186, 4s. 8d., as due under a lease of a farm entered into between the father of the pursuer and the late George Baillie of Jervis—woode, the father of the defender. This lease was entered into by a holograph letter by the landlord, which contained the following provision:—“If you” (the late Thomas Frier) “lay pipes for bringing water to the house and steam-mill, you are to be paid their value at the end of the lease.” The 5th article of the condescendence, referred to in the Lord Ordinary's note, was as follows—“Various communications took place between the pursuer's father and the late Earl as to the mode of getting water. In or about the year 1854, the late Earl of Haddington, with the view of saving, if possible, the expense of bringing water from Fans Hill, a portion of the farm which had been fixed on by his Lordship and the late Mr Frier as the place from which it would require to be brought, instructed the late Mr Frier, before going on with the work, to endeavour to get water by digging and boring at the steading at East Fans. A considerable amount of work was done and paid for by the pursuer's father under these instructions. His Lordship specially undertook liability for the whole expense connected with the digging and boring. He repeatedly visited the steading while the digging and boring were going on, and ultimately, on finding that these operations were not likely to be successful, instructed the late Mr Frier to abandon the operations and get water from Fans Hill. The sum of £19, 4s. was expended in men's wages alone' (exclusive of cartages and horse labour) in connection with the attempt to procure water at the steading.”

The Lord Ordinary ( Mure) pronounced the following interlocutor—“ Finds that the allegations relative to the late Earl of Haddington having undertaken to pay the expense connected with the digging and boring for water, referred to in the fifth article of the condescendence, can only be proved by writ or oath; quoad ultra, and before answer, allows both parties a proof of their averments, and to each a conjunct probation, and appoints the proof to be taken before the Lord Ordinary on a day to be afterwards fixed.

“ Note.—Having regard to the nature of the demand made in the fifth article of the condescendence, and to the time which had elapsed since the obligation is alleged to have been undertaken, and to the fact that the parties to it are both now deceased, the Lord Ordinary does not think it would be proper to allow it to be proved otherwise than by writ or oath.

The abstract plea to title was not insisted on at the debate. And as regards the sums sued for, other than that claimed in the fifth article of the condescendence, the Lord Ordinary does not consider that he would be warranted, at this stage of the cause, in laying down any restriction either as to the mode or extent of the proof; because as regards the pipes parties are at issue, not only as to whether their value is to be taken as at the date when they were laid, or at the expiry of the lease, but also as to what their value was at the latter period; and as a proof will, in any view, require to be gone into on that point, the Lord Ordinary thinks it better to abstain at present from pronouncing any judgment as to the precise period at which the value is to be taken; while as regards the damage alleged to have been done by rabbits during the last year of the lease, the Lord Ordinary, as at present advised, can see no actual irrelevancy in that claim as laid, more especially in a case where the fact that some damage might have been done, of a description for which the landlord might be liable, is scarcely disputed in the letter founded on in the 12th article of the condescendence.”

The defender reclaimed.

Watson and Balfour, for him, argued that the Lord Ordinary should have construed the deed before sending the case to proof.

Solicitor-General Clark) and Campbell Smith for the respondent.

At advising—