Scottish Court of Session Decisions

This was a summons of removing at the instance of William Aiton of Boddam, against Alexander Sellar, Alexander Stephen, and James Sellar, all fishermen, residing in Boddam, concluding that the defenders should be decerned to flit and remove from the occupation of their dwelling-houses at the term of Martinmas 1872.

The pursuer stated in his record that none of the defenders held a lease of the subjects and had no right or title to occupy them after the term of Martinmas 1872.

The defenders stated that in 1867 the pursuer proposed to the fishermen alternatively to purchase their houses or to lease them. The conditions of purchase were to be that the rent of £1, 2s. 6d. should be continued; that the conveyance might be in the form of a lease for 999 years, and that the materials of the house should be valued, and while these belonged to the tenant, yet, in respect of the perpetuity of the tenure to be granted, he should pay the half of the value to the proprietor. The conditions of the lease were to be that the rent should be increased to £2, that the duration should be for three nineteen years, that is, fifty-seven years, that the tenant should uphold the house and leave it at the end of the lease without payment.

A list, with appropriate columns, was submitted to the fishermen on behalf of the pursuer, and a number elected to purchase, while more, including the defenders, elected to lease. Those who elected to purchase received leases for 999 years on the terms above mentioned, and as regarded the others the execution of the leases was deferred by the pursuer on the ground that by the following year more might, if the fishing were successful, be disposed to purchase, but in the meantime the arrangement to lease was held as concluded, and the increased rent has since then been paid. The pursuer from time to time promised to execute and deliver formal leases, and no intimation was received by the defenders that they were not to receive their leases until the month of September 1872. The writings, consisting of lists, rolls, and correspondence relating to the agreement set forth in this and the preceding article, are in the possession of the pursuer and his doers. The same arrangement was also verbally made by the fishermen with the pursuer personally, and he from time to time promised that the leases would be forthcoming.

The pleas in law for the pursuer were—“(1) None of the defenders having a lease or leases of the subjects above-mentioned occupied by them respectively, and having no right or title of possession after the term of Martinmas next, decree of removing ought to pass against them in terms of the conclusions of the summons. (2) No agreement for a lease having been made between the pursuer and the defenders, and the latter, being merely tenants from year to year, are bound to remove in terms of the conclusions of the summons. (3) There being no subsisting agreement under which the defenders are entitled to claim from the pursuer the value of the materials of their houses, and such claim being personal to the parties between whom the alleged agreement (if such ever existed) was entered into, cannot be obligatory on the pursuer as successor to the lands and estate of Boddam, and such alleged claim can form no ground of defence to this action. (4) In any view the only competent mode of proof is by writ or oath of the pursuer.”

The pleas in law for the defenders were—“(1) The defenders have a good and valid right and title to possess the subjects in question in virtue of their agreement with the pursuer, extending for years beyond the term at which they are sought to be removed. (2) The agreement between the parties has been validated and completed by rei interventus, as well as by homologation and acquiescence on the part of the pursuer. (3) In respect of said concluded agreement, the pursuer is bound to grant a lease to the defenders of the subjects in question for fifty-seven years from Martinmas 1867. (4) The pursuer is, in the circumstances, barred by his acts and conduct from maintaining that the said agreement was not entered into. (5) In the event of the pursuer repudiating, and being found entitled to repudiate, his arrangement with the defenders, he is not entitled to remove them without paying for the materials of the houses in question.”

After a proof, the Sheriff-Snbstitute ( Dove Wilson) pronounced the following interlocutor and note:—

“ Aberdeen, 23 d February 1874.—Having considered the cause, finds in fact (1) that in the year 1867 the pursuer offered to the defenders a lease of their respective premises libelled for 57 years from the term of Martinmas 1867; (2) that the defenders accepted said offer; and (3) that since Martinmas 1867 the defenders have been in possession under said offer and acceptance; finds in law that the pursuer is not now entitled to resile from his offer; and therefore assoilzies the defenders from the conclusions of the libel; finds them entitled to expenses of process, allows an account thereof to be given in, and when lodged, remits to the Auditor of Court to tax and report, and decerns.

Note.—It has for long been well settled in the law of Scotland that a lease for a term of years can be proved only by writ or oath. There is no question in this case at present as to what has been proved by oath. The question is whether a lease has been proved by writ?

The writings on which the defenders are forced to rely consist of a correspondence which occurred in the years 1867 and 1868 between the pursuer and his son on the one part, and the witness Robert Stephen on the other part. Certain documents referred to in the correspondence form also part of the proof. The writings are unfortunately incomplete, but such as they are they give a great deal of information.

The first letter which it is necessary to notice is one from the pursuer to his son, dated 26th August 1867, in which he desires him to learn what the fishermen intend doing about their

Page: 273↓

houses, as final answers were wanted by the 18th September at latest, in time to warn them away if they do not agree. This letter evidently refers to some previous verbal communications between the parties. The nature of the proposals under consideration will sufficiently appear in the course of the correspondence. The next letter of consequence shows what the pursuer's son had done on the instructions given him by his father in the first letter above mentioned. It is a letter (dated 3d September 1867), from Stephen, who then acted as a collector of rents for the pursuer at the fishing village, and is addressed to the pursuer's son. It shows that the pursuer's son had been at Boddam, had seen Stephen on the subject, and had promised to send him a list to be filled up, showing ‘those (fishermen) who was to buy and those who was to take a lease of their houses.’ This shows that there were two proposals under consideration, and it also shows what they were. Crossing this letter came one from pursuer's son to Stephen (of the same date), containing the list in question to be filled up. Its terms are too important to be condensed. It says:—

“57 St Vincent Crescent,

Glasgow, 3 d September 1867.

Mr Robert Stephen, Boddam.

‘Dear Sir,—Herewith I send you list of occupiers of houses in the village of Boddam to be filled up according as they may purpose to purchase said houses or lease them. Opposite the name of one who intends purchasing write will purchase house, and opposite the names of intending leaseholder, write will lease house, in the respective columns, and those who will neither purchase nor lease write such opposite his name. If the full name of each person is not written down, please write it, and if jun. or sen. can be added anywhere put it in, so that the full name may be put upon the roll. When that is done send the list to me, and I will at once make out the roll, inserting the value of each house, and the payment to be made by intending purchasers, also length of lease. Opposite the name of purchasers, and opposite the name of intending lease-holders, I will insert the length of their lease and annual rent—and then send the whole to you to be signed by each tenant personally. They are not to sign the list I now forward to you to be filled up; please return it as soon as possible.—Yours truly,

John Aiton.

P.S.—Since writing the foregoing I have bethought me to add to the list in pencil the valuation of each house, and the annual rent put thereon, in case some may have forgot and may ask you for the information. J. A.’”

Without going beyond the terms of this letter, it becomes plain that the nature of the title to be given both to the purchasers and to the lessees was to be a lease, and therefore that in the former case the lease must have been intended to be perpetual or of so long a duration as to be equivalent to a perpetual one, and in the latter case of a comparatively short duration. From this letter it also appears that the prices at which the houses were to be offered to purchasers, and the rents at which they were to be offered to lessors, were also fixed. And as the pursuer's son was to fill in the respective periods of duration without further communication with the fishermen, it is matter of fair inference from the letter that those periods had been fixed, and were so well understood between the parties that further discussion of them was unnecessary. In reply to this important letter there is one from Stephen of 4th September 1867, in which he undertakes to do what he is asked, and says that he will “call on all the tenants in Boddam and see if they are to purchase or lease their houses.” One or two letters pass, mainly giving or asking information as to details, and then, 11th September 1867, Stephen returns to the pursuer's son the list duly filled up. The first paragraph of this letter explains what had been done. It runs:—“Enclosed I send you your schedule, which I hope you will find correct. Those in the schedule without lease or purchase written after their names has not as yet decided whether they will purchase or lease until they see whether they have any privilege round their houses, but they will do either of them.” He also states it as his impression that had the fishing been better many more would have purchased in preference to leasing. On 13th September 1867 the pursuer's son writes to Stephen acknowledging receipt of the lists, and inter alia saying that if any fisherman change their mind before the roll is sent for signature, and will purchase instead of lease, to advise him. On 14th September Stephen wrote the pursuer's son in reply, promising inter alia that if any of the fishermen did change their minds about their houses he should let him know.

The whole matter was thus apparently on the eve of settlement when the pursuer intervened. The small number of those who had decided to purchase, as compared with those who had decided to lease, had apparently disappointed him; and on 17th September 1867 he wrote to his son that the best way would be to leave the option of lease or purchase open for another year. On receiving this letter, the pursuer's son (on 18th September) wrote to Stephen, desiring him to communicate this new proposal to the fishermen. His letter says:—

57 St Vincent Street, Glasgow,

18th Sept. 1867.

Mr Robert Stephen, Boddam.

Sir,—After a careful consideration of the information you have sent me, and due attention being given to the fact that this season's herring fishing is likely to turn out but a poor average for the fishermen of Boddam, the proprietor writes me that, under these circumstances, and a knowledge of their wishes, he will be willing enough to leave the fishermen the option of a lease or purchase of house property in the village of Boddam open for another year, if they should wish it, but upon the distinct understanding that they pay the lease rental, that is, two pounds (£2), rent for the year from Martinmas 1867 to Martinmas following, and that without any garden ground.

I think that what has been proposed above will meet with a unanimous acquiescence from the fishermen, as it gives them a very fair chance of providing themselves by next season with means for the purchase they all desire to make: but put the proposal to them, and let me know the result. At the same time write the proprietor direct on the subject. Ascertain as far as you can generally if they be satisfled; and if there be any dissenting let me know who they are, and what it is.—Yours truly,

John Aiton.’

On the following day (19th Sept.) the pursuer

Page: 274↓

himself wrote to Stephen a letter containing the following passage:—‘I wrote John to say that if the fishermen wished it I would keep the question of their purchasing their houses open for another year, but on the distinct understanding that they pay the £2 rent for next year. They quite understand that they are to have no gardens after this year. Please to let me know whether they wish the chance of purchase kept open, or wish their leases at once.’

On 19th September Stephen wrote to the pursuer's son acknowledging receipt of this proposal, and stating that he would communicate it to the fishermen and send the results in a few days; and on the 27th he wrote to the pursuer stating the fishermen's acquiescence in the proposal.

This concludes the correspondence for 1867; and before going to that of 1868 it is desirable to see exactly how matters were left. In the first place, the writings prove that the pursuer made, through his son and through Stephen, an offer to the fishermen either to purchase or to lease their houses; and, in the second, that the fishermen, as set forth in the list sent by Stephen, had accepted respectively one or other of the alternatives offered; and, lastly, the writings prove that the terms on which the leases were to be executed had been arranged to the mutual satisfaction of the parties, and that nothing remained except to embody them in formal writings. It is plain also that what prevented the leases from being written out was the pursuer's desire, acquiesced in by the fishermen, that the matter should stand over for a year, in order that more might exercise the option of purchasing.

The 1868 correspondence is incomplete, all the writings that are in process being a few letters from the pursuer. The first to which it is necessary to refer is one from the pursuer to his son, dated 21st August 1868, in which he acknowledges receipt of a draft lease, apparently that to be granted to purchasers; and expresses a hope that as the herring fishing is doing well a good many of the fishermen will be able to purchase their houses at Martinmas. On 10th October 1868 he repeats this hope to Stephen, and asks ‘to know what prospect there is of the fishermen buying up their houses this season, so that something definite could be done when I am on the spot.’ From two letters, written respectively on 7th November and 3d December 1868, it appears that the pursuer had been in Boddam between those two dates, looking into the matter of the fishermen's houses. In the latter of these two letters there is a passage of some importance, in which he says that those who made the getting of additional land a condition of purchasing should not have the option of leasing, but should either purchase on the terms offered or leave the house in his hand; and the reason he gives for this is because the refusal of the additional land is ‘their objection to purchase, and not inability to do so.’ He states that ‘this rule (is) to apply to all who makes additional land a condition of purchase.’ This letter is written in the belief that he still had it in his power to withdraw his offer of a lease. The last letter of all to which it is necessary to refer is the pursuer's of 14th December 1868 to his son, in which he returns some deeds executed (conveyances to purchasers), and says, ‘You need be in no hurry with the leases; and in making them out no extra ground will be given in any case.’ From this it appears that the pursuer had not exercised the power which he believed himself to possess of withdrawing the offer of lease.

The correspondence of 1868 is in perfect harmony with that of 1867. There may or may not, from anything that appears from it, have been some fishermen who availed themselves of the additional chance given to them of purchasing, but there is no trace of any one of them having withdrawn his acceptance of the offer to lease. Nor is there any trace of the pursuer having withdrawn his offer to lease except in the limited case of those who asked for more land before purchasing, and it does not appear thateven this limited withdrawal was ever intimated by the pursuer's son to the fishermen. The correspondence ends, as did that of the preceding year, by leaving the impression that nothing more was left to be done except to write out the leases, about which the son was told to be in no hurry. The year's grace was given that those who had accepted the offer to lease might, if they chose, change and become purchasers. Those of them who did so change will appear from the purchases which were made, but with regard to the others, who made no change, there is not the slightest reason to believe that either party resiled from the agreement made during the previous year, and there is, on the contrary, good ground for believing that both parties still regarded it as a subsisting and binding agreement.

So far as this note has gone, everything has been established by writing. There remain various questions, however. Firstly, whether the agreement made in 1867, and not departed from in 1868, is, in a question with the pursuer, sufficiently vouched by the writings; secondly, whether the terms of the agreement can be supplemented by parole evidence, so as to make them distinctly show all the requirements of a lease; and lastly, whether the pursuer is still entitled to withdraw from the agreement, or whether there has been such rei interventus as to make it as binding as if the intention to embody it in formal deeds had been carried out at the time.

The question whether the agreement instructed by the writings binds the pursuer, seems to the Sheriff-Substitute not to admit of doubt. The evidence of a lease must be in writing, but it is not necessary that the writs should be those either of the landlord or of the tenant, or should be those even which constitute the contract. It is enough if they be written by persons whom the principals have authorised, and if they afford sufficient evidence of the agreement which was made. In the present case, although neither the pursuer's son nor Stephen had any general authority of any kind to grant or accept leases, it abundantly appears under the pursuer's own hand that they had ample authority for each step which they took. It is proved that the pursuer instructed his son and Stephen to convey his offers to the fishermen, and to return their answers to him. Had the fishermen been repudiating Stephen's authority to act, it might have been difficult for the pursuer to have proved that Stephen had authority to bind them, but the pursuer, after specially authorising Stephen, cannot dispute his actings. To the effect of carrying the pursuer's message and the fishermen's reply, Stephen was the pursuer's specially constituted factor, and the pursuer can no more repudiate the written reply sent by Stephen, and say that it is not good evidence, than he could have repudiated a lease which he had specially authorised Stephen

Page: 275↓

to grant. It is as much evidence against him as if he had himself entered the fishermen as leaseholders in his rental book, since the writing which a man authorises to be written binds him as much as that which he writes himself; no doubt the agreement remains in such a position that it is questionable whether, had a fisherman chosen to draw back, the pursuer could have found means to bind him, but that would have been a difficulty not occasioned by any doubt whether the contract would be in law or in morality binding on them, but only on a doubt whether the evidence against them would be sufficient, and it is a matter of everyday experience that one of the parties to a bargain has evidence of it, while the other has not.

The writings, however, do not show within themselves the whole essentials of the lease. None of the writings show the duration which the lease was to have. It is, however, quite plain that the duration was fixed between the parties before the correspondence commenced, for in the whole correspondence there is no allusion to the possibility of further discussion on that point. It seems also plain that it was to be a uniform length of lease for all who chose that alternative. In the letter in which the pursuer's son sent the list to be filled up, he says that be has added in pencil the prices and the rents in case any have forgotten, but he does not think it necessary to mention the term of years, which, had it been a varying one for the different tenements, would have been as likely an element to be forgotten as any other. When the schedule was returned he was to fill up the respective lengths of lease for purchasers and tenants without further discussion, and as the former was a uniform period, the probability is that the latter was also uniform. Putting all these things together, the Sheriff-Substitute therefore holds that the written evidence establishes two things with reference to the duration,—firstly, that it was fixed, and, secondly, that it was to be the same period for all. Is it competent then to enquire by parole testimony what this period was? The Sheriff-Substitute thinks that it is, provided always that the evidence be very clear and distinct. The case of M'Leod v. Urquhart, 25th May 1808, Hume, p. 840, is a direct authority for admitting parole evidence to explain the writings to this extent. This was a case with some points of resemblance to the present. The landlord offered by announcement at public meetings crofts for a certain length of time to all who would enlist in a regiment which he was to raise, but the informal missives granted to the tenant did not mention what this time was, and it was held competent to prove it by parole. The only important difference between that case and the present was, that the lease there was for nineteen years, whereas the period claimed here is 57 years, but that is not a reason for altering the principle, although it is undoubtedly a strong reason for being all the more particular that the parole evidence is free from doubt. In some respects it was a weaker case than the present, because it was not inconsistent with the missives that the period there should still be to fix. In the present case the admission of parole seems really more for the purpose of explaining what the parties meant by the terms they used than for that of either adding to or deducting from them. If parole evidence be looked at, the evidence that 67 years was the period is overwhelming. Stephen, who represented the pursuer, says it was the period—all the fishermen, both those who were, and those who were not interested, have the same story; and since the witnesses, during the year and a-half which the negotiations lasted, came repeatedly in personal contact with the pursuer and his son in discussions on the very business, they could not have all been under a uniform delusion. The only evidence to the contrary effect is that of the pursuer and his son, and their evidence is inconsistent with the writings, because they do not pretend that it was some different period that was in contemplation, but alleged that no period at all had been fixed.

With regard to the rent there is no dispute. It appears from the parole evidence that it was to be £2 for nearly all the cottages except for a few of the smaller, and these exceptions are so few that the pursuer's son in his letter of 18th September 1867 (announcing the year's grace), speaks of £2 as the lease rental. The receipts since 1867 conclude the evidence on this point, and show that £2 was the rent in the present case.

In coming to the conclusion to admit parole evidence to some extent in this case to aid in fixing the duration of the lease, and also, though to a much less extent, in fixing the rent, it is not immaterial to have in view that all the written evidence which once existed is not in this process. The original of the schedule which the pursuer's son sent to Stephen has not been produced, and it contained for certain (marked on it in pencil) the rent which was to be paid. Whether its terms would have thrown light on the duration cannot be known. The importance of this schedule is great, because it must have been the document which Stephen had with him when asking the fishermen their decision. Who is responsible for its disappearance does not appear distinctly, but this much is plain, that it was not the fishermen. The matter lies between the pursuer's son and Stephen. The former says that he thinks Stephen substituted a list of his own—that now produced—retaining the one sent. If Stephen did this, his object would be to correct some errors that were in the original. From the correspondence, however, it would rather appear that Stephen returned both the original and the corrected copy. He would hardly have retained the original without remark, and the pursuer's son's reply acknowledging receipt uses the word ‘lists’ in the plural.

If the rent and duration be thus held as fixed, there is no room for question as to the subjects, and thus the three things essential to an agreement for a lease are established.

The agreement, however, which the defenders have proved is one of an informal character, and it is proved that this was intended to embody it in formal leases. There was, therefore, until it was so embodied, room for either party to draw back so long as possession under the agreement had not followed. The possession since 1867 must, however, be attributed to the agreement. The former rents, when the tenants are admitted to have sat either by tacit relocation under old leases, or as tenant at will, were 22s. 6d. a year, and it was part and parcel of the agreement between the parties that the rent was to be raised on the one hand, and a securer holding given on the other. If the tenants had been asked simply for an increase of rent without any inducement to give it being offered, it is quite possible that they might have removed, and as they have now been performing for some years their part of the agreement which was made, it seems

Page: 276↓

only reasonable that the pursuer should not now draw back from his. The pursuer deliberately offered the lease; the defenders as deliberately accepted it, and as the pursuer has for several years drawn the ‘lease rental’ it seems to the Sheriff-Substitute that he is now irrevocaby bound by his agreement.”

On appeal the Sheriff pronounced the following interlocutor and note—

Edinburgh, 10 th April 1874—The Sheriff having considered the reclaiming petition for the pursuer against the interlocutor of 23d February last, with the answers thereto for the defenders, and also considered the record, proof, productions, and whole process, recals the said interlocutor, finds that the defenders have failed to instruct by competent evidence an agreement for a lease of the subjects in question for a term of years as alleged. Therefore repels the defences, decerns removing in terms of the conclusions of the summons, but only at the term of Martinmas next (1874) eighteen hundred and seventy-four, reserving the defenders' claims for the materials of the houses so far as competent; finds no expenses due, and decerns.

“ Note—The Sheriff, with much regret, has come to the conclusion that the writings founded on will not bear the construction which they have received from the Sheriff-Substitute.

In 1867, the proprietor of Boddam being desirous to settle permanently his relations with the fishermen of the village (the most of whom had built or acquired their houses without any proper title), caused enquiry to be made as to the number who were willing to purchase on certain terms, and the number who would prefer to take leases. The duty of making this inquiry was entrusted to Mr Robert Stephen, who went round the village and explained to the fishermen that purchasers were to have 999 years' leases at a rent of £1, 2s. 6d., the tenant paying half the valuation of the house, or if these terms were not accepted, they might have leases for 67 years at £2 of rent. A paper is produced embodying the result of Mr Stephen's inquiries, which was sent to Mr John Aiton, the pursuer's son, on the 11th of September 1867. It contains 117 names with the words ‘lease’ or ‘purchase’ written against them, where the parties had made up their minds to do either, and the letter accompanying the document explains that where these words were wanting the people had not yet decided what they would do.

Upon this paper two questions arise—1st, whether it is a sufficient memorandum of the alleged contract to satisfy the rule of law that the terms of a verbal bargain relating to heritage even when validated rei interventus can only be proved by writing; 2d, whether Mr Stephen can, in any proper sense, be said to have been the duly authorised agent of the parties to draw it up.

The Sheriff is inclined to think that the case of the defenders fails on the first point, because it neither specifies the subject, nor the rent, nor the period of endurance—the three essentials of a contract of lease. It is perhaps not necessary that the note or writing should be signed by both parties to be binding. It is conceivable that a proposal in writing made by one of them may be verbally accepted by the person to whom it is addressed; and a verbal offer accepted in writing might be sufficient, but in either case the written offer or the written acceptance should be complete in itself, to the extent, at least, of showing what the parties were contracting about, the more particularly when the person addressed is not an individual, but a community, and the medium of communication is, say, the bellman making public proclamation of the landlord's wishes, or, as in this case, a person going through the village with note-book in hand, from house to house.

Granting, however, that the writing when supplemented by the other evidence is sufficient, then the defenders have to show that, on drawing it up Mr Stephen was acting for both parties, duly authorised in that behalf. It is here that, in the opinion of the Sheriff, the case for the defenders entirely fails. The defenders themselves were certainly not bound, nor understood to be bound, by what passed between them and Mr Stephen when he was going his rounds, because on the receipt of the information the pursuer, not thinking that any of them were absolutely committed one way or another, proposed in his letters to his son, and also to Mr Stephen, that the option to lease or purchase should remain open another year, in the hope that with a good fishing they would be better able to take the latter course, which was the one which he would prefer. On the other hand, Mr Stephen cannot be regarded as Mr Aiton's agent to the effect of binding him to give every man a lease who expressed a wish to have one. Mr Stephen did not so understand his powers himself, and such an idea plainly never entered Mr Aiton's mind. The object was enquiry. He wished the fishermen to buy their houses, and he wanted to see how many of them were in a position to do so, or how many would prefer to sit as tenants. But this dealing with the village as a community was to be preliminary to dealing with each fisherman as an individual. The great majority of the 117 in Mr Stephen's list were no doubt hardy, sober, and industrious men; but a few of them possibly were of a different character, whom any landlord would hesitate to accept as tenants on any terms, and it is not conceivable that Mr Aiton, in making his proposition public, ever intended to abandon the delectus personœ which is of the very essence of the relation of landlord and tenant, and that he was absolutely committed to take every man that offered.

Accordingly, in the letter of 3d September 1867 sending Mr Stephen his instructions, very distinct directions are given for the express purpose of preventing any such construction of his powers. The fishermen were not to sign the list forwarded, but when it was returned filled up, a new roll was to be prepared containing the value of each house, the payment to be made by purchasers, the length of the leases, and the annual rent. Mr Aiton adds, ‘I will then send the whole to you to be signed by each tenant personally.’ This was to constitute the contract between the parties, which would then be intelligible.

At Martinmas 1867 the rents were raised from £1, 2s. 6d. to £2, and the fact that this sum has since been paid forms, it is said, sufficient rei interventus. It may be so if distinctly referable to the agreement for a 67 years' lease, which is alleged; but this can hardly be maintained in the face of Mr Aiton's letter to his son, of date 17th September 1867. He there says,—‘After looking carefully over all the information you have been kind enough to send me regarding the fishermen's houses at Boddam, I think that the best way would be to leave them the option of lease or purchase open for another year, but upon the distinct understanding

Page: 277↓

that they pay £2 rent for the next year, that is, from Martinmas 1867 to Martinmas 1868.” This was communicated to Mr Stephen, who, after an interview with the fishermen on the subject, reported (under date September 27, 1867), “In general they are quite willing to pay £2 rent until they see at the end of the herring fishing season 1868 if they are able to purchase, and if they are not able to purchase at the above-mentioned time they will then take a lease, and pay the yearly rent of £2.” The meaning of this is clear, nothing having yet been definitely settled as to the leases. Mr Aiton says the rents must be at once raised if they are to continue in possession, and they will sit from year to year in the meantime at this higher rate till the matter of the leases is finally adjusted. The fishermen reply,—We are quite agreeable. Indeed, we would rather the matter should lie over till the end of season 1868; but that you, the proprietor, may have no cause to complain of the delay which has been conceded as a favour to us, we will start at once with the new rent. So that this matter of the payment of the increased rent rather shows, not only that there was no rei interventus, but that there never was any completed agreement between the parties. In short, the whole thing comes to this,— the pursuer expressed to the villagers, as a community, a readiness to deal with them on certain terms as individuals, but the agreements contemplated have never been carried out, and therefore the defenders are merely tenants from year to year.

As the cases are representative cases no expenses have been given.”

The pursuer appealed.

Authorities cited—Hunter on Leases, i. 263; Bell on Leases, 305; M'Leod, Hume, 840; Hunter, i. 263; M'Rorie, F.C., Dec. 18, 1810; Russell, 13 S. 752; Maxwell, Hume, 849.

At advising—