Dickson v Porteous
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1852 |
| Date | 12 November 1852 |
| Year | 1852 |
| Docket Number | No. 1 |
| Court | Court of Session (Inner House - Second Division) |
Lord Cowan. R.
Landlord and Tenant—Retention.—
JOHN PORTEOUS was tenant of the farm of Easterplace of Hartree, the property of Mr David Dickson, till Whitsunday 1849 as to the houses and grass, and the separation of the crop as to the arable land. The rent for the last year's possession of the farm, which was L.125, became payable, one half at Whitsunday 1849, and the other half at the Martinmas following. By the terms of the lease, the tenant was taken bound to leave his outgoing crop, at least one fallow field, and the dung at the end of the lease, for which he was to be paid. Upon Porteous removing from the farm, it was arranged that the incoming tenant was to get the dung and way-going crop, and to pay for it, and also for the ploughing of the fallow land, at the valuation of arbiters. A submission was accordingly entered into between the two tenants, by which they appointed arbites to put a value on the dung and ploughing of the fallow land, and also repairs upon houses and cleaning of ditches on the farm.
Porteous having refused to pay his rent when it fell due, on the ground that the landlord was liable to him in the price of the dung, fallow, and way-going crop, the value of which exceeded the rent due, the landlord raised an action in the Sheriff-Court of Peeblesshire, concluding for payment. As doubts had been stated by Porteous as to the ability of the incoming tenant, by whom the way-going crop had been taken possession of, to pay for it, the landlord granted to him a letter binding himself to secure to him payment of all the crop taken possession of by the incoming tenant, according to the value put upon it by arbiters named by the two tenants. Subsequent to the action being raised, the value of the way-going crop was paid to Porteous by the incoming tenant The amount of the rent was consigned in process.
In an advocation which was presented by the landlord against the judgment of the Sheriff, the Lord Ordinary pronounced the following interlocutor:—‘Advocates the cause: Recalls the interlocutors complained of: Finds, that at the date of raising the action, there were exigible by the respondent, under the lease of his farm of Easterplace of Hartree, claims for dung, fallow, and crop, amounting to a greater sum than the rents concluded for in the action, and that said claims, irrespective of arrangements with regard to them between the respondent and the incoming tenant, might be competently pleaded in defence to the advocator's claim for rents: Finds, that as regards the growing crop, the value of the same was ascertained between the respondent and the incoming tenant, and that the amount thereof was paid to the respondent subsequent to the institution of this action, whereby the plea of retention urged in the record, in so far as disputed by the advocator, came to be restricted to the value of the dung and fallow: Finds, that the respondent entered into a submission with the incoming tenant, of date 23d May 1849. No. 18 of Process, by which these parties agreed, that the referees therein named should put a value upon the dung and fallow, also repairs upon houses and cleaning of ditches on said farm, and that the claim for said repairs on houses and cleaning of ditches had reference to the obligation incumbent on the respondent as to the condition in which the houses and ditches were to be left at his removal from the farm: Finds, with regard to the effect of such submission having been entered into, on the one hand, that the respondent did not thereby discharge his claim against the advocator for the value of the dung and fallow under his agreement of lease, assuming the same not to be otherwise satisfied, but, on the other hand, that the respondent must have...
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