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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hardie v. Duke of Hamilton [1878] ScotLR 15_329 (2 February 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0329.html
Cite as: [1878] SLR 15_329, [1878] ScotLR 15_329
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SCOTTISH_SLR_Court_of_Session
Page: 329↓
Court of Session Inner House First Division.
[
v.
Facts:
Where a tenant, alleging loss through game during seven successive years, had each year made a distinct and specific claim for damages, and not a mere general complaint— held that he was not barred from insisting in his claim for the whole period, although he had paid his rents without deduction and without reservation of his rights, which were denied by his landlord.
The pursuer in this action was tenant of the defender's farm of Borrowstounmains, Linlithgowshire, under a lease for nineteen years from Martinmas 1862. He concluded for £565 in name of damages for injury to his crops through over-preservation of game and rabbits. The damage was said to have taken place in the years 1869–70 to 1875–6 inclusive. In each of these years the pursuer complained of his losses to the defender's commissioner, and this was admitted by the defender. These complaints were both verbal and in writing. The pursuer also had the damage done to particular fields estimated by men of skill, and intimated that he held the defender liable for the damage sustained. Specific statements of damage as estimated were given to the defender each year. The pursuer was in use to deduct the estimated amount of game damage done to the year's crop, until in 1874 a new commissioner was appointed, and eventually, as he averred, under threat of sequestration, the pursuer was obliged to pay back what he had got in deduction.
The defender stated that the only deduction he had allowed was in 1874, and that that was accepted as in full of all claims of every description which the defender had. The defender had paid the rents without deduction or reservation with that sole exception.
In these circumstances the defender pleaded, inter alia—“In respect of the periodical settlements of rents, the rents having been paid without deduction or reservation, and the pursuer not having instituted proceedings forthwith, the present action cannot be maintained for any period prior to the said termly settlements.”
The Lord Ordinary repelled this plea, and the defender reclaimed.
Argued for him—A claim for damages by game must be insisted in at once, as the means of estimating it passed rapidly away. Broadwood v. Hunter established that mere complaints would not preserve the tenant's right, but the principle above stated applied even when the claim was distinctly made, if it was not immediately followed up.
Authority— Broadwood v. Hunter, Feb. 2, 1855, 17 D. 340.
The respondent was not called on.
Page: 330↓
At advising—
The Court adhered.
Counsel for Defender (Reclaimer)— Balfour— Low. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for Pursuer (Respondent)— Kinnear— J. A. Reid. Agents— J. & A. Peddie & Ivory, W.S.