Scottish Court of Session Decisions

This was an action of damages for injury caused by rabbits, at the instance of William Cadzow, against his landlord, Sir Simon Macdonald Lockhart of Lee. The pursuer was tenant of two farms belonging to the defender, under leases containing respectively the following clauses:—“Reserving also to the proprietor and his foresaids the sole right to the whole game and fish of every kind within the lands hereby let, with full power to himself and to those having his permission to hunt, shoot, or fish and sport on the farm without liability in damages; and the tenant shall be bound to preserve the game of all kinds to the utmost of his power, to interrupt poachers and unqualified persons, and to give information of them to the proprietor and his foresaids, or those acting for him or them; and it is hereby expressly declared and agreed that the tenant shall have no claim whatever for any damage he may sustain from game, hares or rabbits, during the lease, this being held to have been calculated upon and allowed for by him in offering for the farm.” “Reserving also to the proprietor and his foresaids the sole right to the whole game, including hares and rabbits of every kind, and to all the fish in the rivers and burns within the lands hereby let, with full power to himself and to those having his permission to hunt, shoot, or fish and sport on the farm, without liability in damages: and the tenant shall be bound to preserve the game of all kinds, including hares and rabbits, to the utmost of his power, to interrupt poachers and unqualified persons, and to give information of them to the proprietor and his foresaids, or those acting for him or them: and it is hereby expressly declared and agreed that the tenant shall have no claim whatever for any damage he may sustain from game, hares and rabbits during the lease, this being held to have been calculated upon and allowed for by him in offering for the farm.”

The pursuer moved that the case be tried by jury, but the defender opposed the motion on the ground that the case principally turned upon the construction of the above clauses, and the case was therefore better fitted for trial by proof before the Lord Ordinary than by jury.

The Lord Ordinary allowed a proof, and the pursuer reclaimed.