Scottish Court of Session Decisions

This case came up on appeal from the Sheriff-court of Caithness. A petition had been presented to the Sheriff on January 14, 1873, stating “that the respondent occupies, and has occupied, a pavement and slate quarry on the farms of West and North Calder, in the parish of Halkirk, since the term of Whitsunday 1872, under the petitioner, the proprietor thereof, in virtue of a lease dated the 19th day of July and the 2d day of August, both in the year 1872, for seven years from and after the said term of Whitsunday 1872, and that at the fixed yearly rent of £5 sterling; as also the lordship or quarry rent of 3d, sterling for every superficial yard of flags which should be taken away from the said quarry or grounds; which rent and lordship is thereby stated to be payable at two terms in the year, Whitsunday and Martinmas, beginning the first term's payment at Martinmas 1872, and the next term's payment at Whitsunday thereafter, for the year's possession from Whitsunday 1872 to Whitsunday 1873.

That the said lease further provides that, with the view of ascertaining the said rent and lordship, the said Donald Shearer should regularly assort and measure all the flags raised, and mark the contents thereon with tar or paint, and enter the number or contents of such flags in a book or books to be kept by him, which should be at all times patent to the petitioner or his factor, and should be balanced half-yearly at the 10th day of November and 14th day of May in each year, and should be the rule for ascertaining the amount of lordship payable; that is to say, at the term of Martinmas in each year the tenant should pay lordship at the foresaid rate per superficial yard on the total number of yards taken away from the said quarry between the 14th day of May and 10th day of November preceding such term; and the said Donald Shearer is further bound by the said lease to raise in each year thereof from the quarry let at least 10,000 superficial yards of marketable pavement, and the lordship of 3d. per superficial yard, it is declared by said lease, should in no year be paid on less than 10,000 yards, whether quarried or not.

That the said Donald Shearer has by his agent intimated to the petitioner that the quantity carted by him from the said quarry for the halfyear to Martinmas 1872 does not amount to 5000 yards. There was therefore due and payable by the respondent to the petitioner at the term of Martinmas 1872, in respect of the respondent's occupancy of the said quarry— First, £2, 10s. sterling. being the proportion of the fixed yearly rent of £5; Second, Lordship on 5000 yards, the quantity upon which the said Donald Shearer is bound to pay lordship for the said period from Whitsunday to Martinmas 1872, at the rate of 3d. per superficial yard, which lordship amounts to £62, 10s.; amounting said two sums to the sum of £65, with interest thereon at the rate of £5 per centum per annum from the said term of Martinmas 1872.

The respondent has been often asked to make payment of these sums, but he has hitherto refused to do so, and they are still due and resting-owing to the petitioner. In consequence thereof, the present application has become necessary.”

The prayer sought sequestration in security for the rent alleged to be due; and thereafter warrant to sell sufficient of the effects to meet the claim.

On 21st March the Sheriff-Substitute pronounced the following interlocutor:—“The Sheriff-Substitute having heard parties' procurators, before answer, allows to the respondent a proof of his averments, and to the petitioner a conjunct probation: Appoints the same to be proceeded with and concluded on the 11th of April next, at eleven o'clock forenoon, and decerns.”

Against this interlocutor the petitioner appealed, and, on 28th April the Sheriff-Depute ( Thoms) pronounced an interlocutor as follows:—

“ Wick, 28 th April 1873.—The Sheriff having considered the petitioner's appeal, together with reclaiming petition for him, answers thereto for the respondent, and whole process, Sustains said appeal, and recalls the interlocutor submitted to view: Finds, as matter of fact, that by lease dated the 19th July and 2d August 1872, the respondent bound himself, as tenant, to pay to the petitioner, as proprietor of a pavement and slate quarry on his farms of West and North Calder, in the parish of Halkirk, in the county of Caithness, a fixed rent of £5, and also a rent by way of lordship of 3d. per yard in any event on at least 10,000 superficial yards of pavement for each year of the lease for seven years from Whitsunday 1872, the term of entry; that the respondent entered upon, and has wrought the said quarry under the said lease at and from Whitsunday 1872, and is still in possession thereof under the said lease: that a halfyear's moiety of said annual rent of £5, and of the said lordship at 3d. per yard on 10,000 superficial yards of pavement, amounts to £65 sterling, and was not paid by the respondent at the term of Martinmas 1872; and that the said sum of £65 as such moiety remained unpaid at the date of presenting this petition, on 14th January 1873, for sequestration in respect of the rent so due at Martinmas 1872; Finds, in point of law, that the articles mentioned in the prayer of the petition were then liable to sequestration, and to be sold as therein prayed for; that no relevant defence to the granting of said prayer, under the reservation after mentioned, has been set forth by the respondent; and that, but for the consignation after mentioned, the petitioner would have been entitled to have had the prayer of his petition granted, under reservation to the petitioner of any claims for further rent and interest from the respondent competent to him, and to the respondent of any claims of retention and for implement and damages or otherwise against the petitioner, competent to him, and to each of them his defences to such claims as accords; Finds that on 14th January 1873 the respondent consigned in the hands of the clerk of court the sum of £65 sterling; Finds the petitioner entitled to a warrant to uplift said consigned sum with the interest which has accrued thereon, under reservation as aforesaid; Therefore, under reservation as aforesaid, grants warrant and authority to the petitioner to uplift from the clerk of court the said sum of £65, with any interest which has accrued thereon, and ordains the sheriff-clerk to pay to the petitioner the said sum of £65, with any interest which has accrued thereon, and decerns: Finds the respondent liable to the petitioner in expenses, allows an account

Page: 72↓

thereof to be lodged, and, when lodged, remits the same to the Auditor to tax and to report.”

The respondent appealed to the Court of Session.

The respondent stated that in the month of January 1871 the petitioner published in the “Northern Ensign” newspaper and other newspapers circulated in the county of Caithness an advertisement in the following terms:—

“ Notice to Pavement Merchants and others.

It is believed that flag rock is to be found in several portions of the estate of Scots-Calder, and the proprietor is willing to enter into arrangements for opening and working quarries in any part of the estate..…The proposed through line of railway from Sutherland into Caithness passes through a portion of the estate, where some good flags have been found when quarrying for estate buildings and fencing; and the proprietor is prepared to arrange for sidings or roads from any quarries that may be worked.”

In consequence of this Mr Shearer made an offer which was duly accepted, and having taken means to search for a quarry, he succeeding in discovering one about the term of Whitsunday 1871, and proceeded to open it. Finding that it might be profitably worked, he intimated the fact to Colonel Guthrie's agents, and at once placed on the ground the necessary plant and machinery, and carried on the operation of quarrying; and before the term of Whitsunday 1872 he had raised 9405 yards of pavement, but in consequence of the petitioner's failure to form a road from the quarry to the county road, he has been unable to cart away any more than 853 yards. The remaining 8552 yards still lie in the quarry, and are rapidly deteriorating. Between Whitsunday 1872 and Martinmas 1872 he raised from 4000 to 5000 yards, which also still lie on the ground, the respondent having been unable from want of a road to remove them.

The petitioner averred that the intimation was not made till Whitsunday 1872, and that the draft lease was sent to the respondent on 21st June 1872, but it was not returned until a day or two before it was signed by him. It was so signed on 18th July 1872, and in respect that the respondent stated he had not quarried such a large quantity of flag in the first year (which was free of rent or lordship, and is not included in the lease), as he had expected, the currency of the lease was extended by a year. The respondent refused to sign the plan relative thereto. Immediately after the respondent signed the lease, arrangements were made for forming the road, and it was commenced within a week, or at least a very short time thereafter.

The petitioner also explained that his agent frequently, at meetings with the respondent, had stated that he could not incur any expense in making a road until it was first ascertained that a quarry would be found and the respondent had entered into a lease, which was not done until 18th July 1872; and further, that the road was immediately thereafter commenced, and is finished, and the petitioner's obligation thereanent has been implemented.

The petitioner pleaded—“(1) The said sums having been due and payable to the petitioner at the term of Martinmas last, he is entitled to sequestration and decree as craved, with expenses. (2) The defences made by the respondent being virtually a claim for loss and damage, and further, being illiquid and groundless, his pleas ought to be repelled, and the petitioner found entitled to decree as craved. (3) The respondent's defence being irrelevant, ought to be repelled.”

The respondent pleaded—“(1) The respondent through the petitioner's failure to form a road from the quarry to the county road, having been prevented from carting any stones from the quarry during the period of charge, and from obtaining any benefit from the subjects let, is not liable in the rent sued for. (2) The petition should be dismissed, or the respondent assoilzied, with expenses.”

Authorities—Hunter, ii. 243; Bell's Comm,, i. 72 Cumming v. Williamson, May 28, 1842, 4 D. 1304 Gray v. Renton, Dec. 10. 1840, 3 D. 203; Kilmarnock Gas Co. v. Smith, Nov. 9, 1872, 11 Macph. 58, 10 Scot. Law. Rep. 49.

At advising—