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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Colonel Gordon of Cluny - Wilso - Wrigh - Pyper v. John Anderson - Kea - T. H. Miller Et e contra. [1828] UKHL 3_WS_1 (15 February 1828) URL: http://www.bailii.org/uk/cases/UKHL/1828/3_WS_1.html Cite as: [1828] UKHL 3_WS_1 |
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(1828) 3 W&S 1
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1828.
1 st Division.
No. 1.
Subject_Tack — Clause. —
A landlord having drawn up certain ‘articles and conditions’ for letting his estate, by which, inter alia, it was stipulated, that “the whole fodder is to be used upon the ground, and none sold or carried away at any time, hay only excepted, and all the dung to be laid on the farm the last year of the lease;” and a tenant having taken a farm by a missive, binding himself to the conditions in another tenant's missive, which referred to these articles; and having also signed a draft of a tack referring to them—but the draft never having been extended, and he not having signed the articles themselves, but having possessed for the full endurance of the lease;—Held, 1. (affirming the judgment of the Court of Session), That the tenant was bound by the ‘articles and conditions;’ but, 2. (reversing the judgment), That, in conformity to the reversal in the case of Gordon against Robertson and others, 10th May 1826, * he was not entitled to carry away the fodder of the last year.
Colonel Gordon's father, Mr Gordon, succeeded in 1800 to the estate and barony of Slains in Aberdeenshire. In 1801 the whole barony fell out of lease. Previous to reletting the farms, Mr Gordon, with the view of introducing a new system of cultivation and management, drew up a set of articles and conditions, to be communicated to intending offerers. The document was entitled, “Articles and Conditions laid down by
_________________ Footnote _________________ * 2. Wilson and Shaw, (1826–27), p. 115.
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1. A twenty-one years' lease to be granted, and the tenant tied down to actual residence.
2. Assignees and subtenants, legal or voluntary, without the proprietor's consent, to be excluded.
3. The farms to be let, and marches lined out and fixed, agreeable to Mr Johnston's plan.
4. Mr Alexander's estimate of the new rent is L.2382, of which 128 bolls bear, and 436 bolls meal, valued at 20s. per boll, and L.1818 in money. Mr Johnston's estimate is L.2633, of which 420 bolls in bear, and 720 bolls in meal, also valued at 20s. per boll, and L.1513 in money; the medium of which two estimates is 274 bolls of bear, and 687 bolls of meal, all of the growth of the estate, and L.1665 in money, making the gross of the medium rent, in victual and money, at said conversion, L.2517, exclusive of any immediate rise on the parts of Broadly-hill, and Old Clochtow, and Nether Leask, at present under lease, and here put down only at their present rents; and exclusive also of the fishings, not rented at all, and of the common moss, and 400 acres reserved by Mr Johnston's plan for plantations, and 100 acres more for roads, &c. which gross rent, under the exception of the fishings, and the farms under lease, and those now let by Mr Gordon himself, he makes the rule for the whole possessions yet to be let, keeping it in his option to take the victual in kind, or the above conversion of 20s. per boll; the bear and meal to be proportioned and laid upon the farms as best suits them, understanding each kind to be delivered of the accustomed weight and measure.
5. Supposing the above rent is L.2500, Mr Gordon agrees to allow L.400 a-year of it for the first three years, to be given the tenants in lime, in proportion to their rents, retaining a due proportion for the three farms still under lease; Mr Gordon to purchase the lime, but the tenants to carry it, and furnish certificates of what they receive and use.
6. Mr Gordon allows as much of the first year's rent as, when added to the present value of biggings belonging to him on each farm, will be equal to the said year's rent, for building suitable dwellings and offices, agreeable to the plan fixed by him, the dimensions to be larger or lesser in proportion to the rent and extent of the farm, and to be built within three years after entry, at the sight of his factor for the time, the tenants finding all the carriages, and recompensing the outgoing
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7. To encourage the tenants to make suitable enclosures, by making the outer fences stone-dikes, and the inner subdivisions ditch and hedge, lined out to the satisfaction of the factor for the time, they shall be allowed by the heritor, at the expiry of their lease, the value of such enclosures and fences, according as shall be valued by men mutually chosen, providing such enclosures are then fencible. But no allowance to be made for any enclosures that are not left fencible at the expiry of the lease; or if the proprietor incline to make any such enclosures or fences at his own expense, the tenant shall pay therefor yearly, along with his rent, at the rate of six per cent, and keep them in sufficient repair during the lease, and leave them so at his removal.
8. The victual rent to be payable' twixt Yule and Candlemas, and the money rent at Martinmas and Whitsunday each year, after reaping and ingathering the crop of that year, with interest thereafter during the not-payment,—the victual to be delivered at the granary, or at any other place to be fixed by Mr Gordon, as most convenient to estate and market, and to be carried from thence to Peterhead, Aberdeen, or any place of the like distance, when required.
9. The tenant to be allowed to give houses, yards, and portions of land, to such cottars only as are necessary for assisting in the culture of the farm; but under no lease, nor exceeding eight acres at most on the largest farm, and less in proportion on a less farm.
10. The proprietor to pay cess and stipend, but the tenant to pay schoolmaster, ground-officer, moss-grieve, statute labour, and all other incidental or parochial burdens or assessments, imposed or to be imposed.
11. The whole estate to be tied down to a general rotation of cropping; that is, to have always the one-third of the whole arable in green crop or summer fallow; never to plough, the same field more than twice for a white crop, without an intervening green crop of turnip, potatoes, pease, beans, or red
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12. The mills of Brogan and Forvie being abolished as unnecessary, the whole estate to be now thirled for what they grind to the mills of Collieston and Leask, paying the usual bannock and service, but no multure. The thirlage to each mill to be fixed by the proprietor by the time the leases are ready to be executed.
13. Every tenant or cottar to have privilege of firing for their own use from the common moss of the estate, and of marle, shell, or other common manure, but to be restricted and regulated as to their mode of working; and every tenant on whose ground such marle or manure is, shall be allowed surface damage, where the ground is in tillage, or has been improved; the said damage to be ascertained by men to be mutually chosen by the tenant on whose ground the marle or manure is, and the tenant taking away the same, and to be paid by the tenant taking away the same.
14. No tenant to sell peats, fuel, lime, marie, or other manure, nor ale or spirits, nor pull bent, nor plough or break up any sward or grass ground, near the sands; in particular, Whiteness, Little Collieston, Mudhole, Cothill, Haddo, Little Forvie, and Waterside, to be laid under said restriction as to the bents.
15. Power to be reserved to the proprietor to work and win marle, limestone, freestone, ironstone, and metals and minerals of every kind; make canals, sink pits, straight marches, exchange ground between farms, or with neighbouring proprietors, erect mills or other machinery, or make roads, or convey springs or drains in such direction as he shall think fit; and to make plantations, clumps, or belts, on paying surface damage, and making reasonable allowance for the ground to be taken away for such purposes.
16. The whole fodder to be used upon the ground, and none sold or carried away at any time, hay only excepted; and all the dung to be laid upon the farm the last year of the lease.
17. All to be tied down to answer the courts of the barony, and obey and fulfil its acts and regulations, and assist the officers in the execution of their duty.
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18. As also, a condition, as in all former leases, that if the tenant fail in payment of his tack-duty, or transgress or fail in the observance and performance of the other stipulations; then, and in any of these events, he or she shall be removable upon a single warning and decree of removing, in the same manner as if the tack had never been granted; and every tenant shall also be taken bound to remove without any warning or process of removing; and in case of disobeying or contravening any of the conditions or stipulations in the tack, he shall pay of additional rent at the rate of L.4 per acre, over and above performance.
19. In setting Waterside and Little Forvie, and Mill-town of Forvie, power to be reserved to build piers, and make basins or harbours, and to reserve or take back, at a reasonable valuation, two acres of ground or thereby, to lie as a servitude, for the use of the tenants upon the estate, to lay down coal or other articles, or to build shades, granaries, &c.; and the same powers to be reserved at setting the Fish-town of Collieston.
20. No blacksmiths or inn-keepers to have leases, or to be admitted without the consent of the proprietor.
21. The entering tenant on the leases now to be granted shall be obliged to pay the removing tenant for labouring and planting the kail yards, and for the grass seeds sowed the year of removal, conform to appreciation of men to be mutually chosen.
These are the articles and conditions referred to in the several offers made by us respectively, for different farms on the estate of Slains, of the dates hereto annexed to our respective subscriptions.”
The tenants, to the number of twenty-one, then subscribed the articles; but they were not subscribed either by Anderson or by George Wilkins; and then they proceeded in these terms:—
“The above are the general articles and conditions on which the leases on the estate of Slains are to be granted by me, and to be referred to therein, with the following explanation on article eighth, as to the meal; that the accustomed weight is, by the established usage of the barony, eight stone two pound each boll, deliverable at the mill-eye free of mixture: And as to the mode of cropping laid down by article eleventh, the proprietor agrees, for the accommodation of the tenants, that one-third of what shall, according to the foregoing rotation, come under tillage, shall be sown down with grass seeds, and to be only one year cut for hay, and two in pasture, otherwise to pay L.4 sterling per acre of additional rent. Declaring always, That if the tacksman shall find it also for his accommodation to continue
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On the 23d of May 1801. George Wilkins made the following offer to Alexander Grant, writer to the signet, then Mr Gordon's agent:—
“I hereby make offer to you, as agent for Mr Gordon of Cluny, proprietor of the estate of Slains, for a lease of twenty-one years of the farm of Milltown of Brogan, according to the new proposed boundaries, viz. running from the mill of Collieston, in a straight line, to the loch at Andrew Sharp's, then by the mill-road, in the line of march at the east side of the Weaver's Croft, down by the south dike of Middle Brogan, with a straight to the march of mill of Leisk, the yearly rent of L.107. 16s. sterling money, and 26 bolls of meal and 15 bolls of bear, good and sufficient of their kind, payable the money rent at Martinmas and Whitsunday, by equal portions; and the victual rent deliverable, at Yule and Candlemas, at the granary, or Peterhead, or the like distance as formerly; my possession to commence as at the present Whitsunday 1801 for crop 1802. In case my description of the boundaries may not be accurate, I understand it to be as delineated on Mr Johnston's new plan; and that I am to be allowed a year's rent to enable me to build a dwelling-house and set of offices suitable to the general plan of the estate; I to furnish the carriages, and to maintain said dwelling-house and offices in good condition, and leave them so at my removal. The dwelling-house to be slated, the offices to be thatched or tiled, as most agreeable to the proprietor; and I engage to have the steading completed by the time that the last half of my first year's rent becomes due, namely, Whitsunday 1803. I understand I am to have my share of the proprietor's general allowance of lime for the first three years, and that I am to be allowed, at the expiry of the lease, the value of such enclosures by stone-dikes as I may erect on the farm at the sight of the factor for the time being; the dikes to be estimated by mutual appreciators; and that I shall be
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allowed to give houses and yards, and a small portion of land, to such cottars as are necessary to assist me in the culture of the farm, not exceeding in the whole eight acres, but over which I am to give no lease. I agree to the seclusion of assignees and subtenants, and to actual residence by me and mine upon the farm, and to a general rotation of cropping, and any other regulations to be laid down for the whole estate. I agree to pay schoolmaster, ground-officer, moss-grieve, and statute labour, as formerly; but I understand that I am to be liable in no cess or stipend, never having paid it before; and to be allowed firing for myself and cottars from the common moss of the estate, and to submit to the rules of the barony in all other respects. I expect I am to be allowed the materials of the present steading of offices, without paying any consideration therefor. Lastly, I engage to enter into a lease on the foregoing terms, the lease to contain all the regulations intended to be laid down for the estate, if by that time digested and ready; and I understand the mill of Brogan to be abolished, and not contained in my offer. In testimony whereof, I subscribe and address this offer to you before these witnesses, Walter Finlay and Andrew Robertson, both writers in Edinburgh.”
Mr Gordon, to whom this offer had been transmitted, wrote of the same date to Wilkins:—
“I agree to the terms therein expressed, understanding every thirlage following the mill of Brogan to be abolished, in consequence of the new arrangement of the estate, and the privilege of moss to be regulated also by that arrangement.”
Thereafter John Anderson, on 28th May 1801, addressed to Mr Grant, writer to the signet, Mr Gordon's agent, the following missive:—
“Notes of offer by John Anderson to Mr Gordon.
1. A lease of Kirkton as possessed by him, with part of the lands of Crawley and Muckletown, as delineated on the plan, for 21 years from this Whitsunday and Martinmas next.
2. Money rent L.200, and 100 bolls barley.
3. L.200 to be allowed on repairing the steading.
4. The proportion of lime to be allowed with the other tenants.
5. The neighbouring tenants to make and uphold the half of the march fences.
6. The landlord to pay cess and stipend, and the tenant to pay schoolmaster's fees, baron-officer, and moss-grieve's dues.
7. The tenant to be allowed to subset the lands of Crawley
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and Muckletown, or part of them; or to find a tenant to the proprietor's satisfaction. 8. The proprietor to advance a sum of money for enclosing, by a stone-dike, part of Seafield farm, as delineated on the plan by Mr Johnston, for which the tenant is to pay six per cent in addition to the above offer.
9. The tenant to be bound to the conditions of Mr Wilkins' offer, and to be thirled to the mill of Leask for such corns of the farm as he shall have to grind; understanding that I am to pay no multure to the proprietor, but to pay the miller for workmanship, which is called bannock and half. The foregoing is my highest offer.”
On the 2d of June following, Mr Gordon answered by letter,—
“I have received and considered your offer to Mr Grant, of 28th May, for Kirkton and Seafield, according to the new arrangement, as delineated on Mr Johnston's plan, of which offer the prefixed is an exact copy; and I accept thereof on the footing of Mr Wilkins' offer, and the general conditions laid down by me for the whole estate; and at your request, and to oblige you, I further agree to accept of your victual, 60 bolls in bear, and 40 bolls in meal, and to enclose your part of the Crawley and Muckletown, if you require it—you paying at the rate of six per cent along with your rent for the expense of said enclosure, and keeping it fencible and in good condition during the lease, and leaving it so at your removal, and leaving that farm in three years' grass, and Seafield the same, and on same terms if enclosed by me; your removal from each, in that event, to be at Martinmas instead of Whitsunday: and if you find me a good tenant for the farm of Crawley, enclosed or unenclosed, I shall either accept of him and relieve you in so far, or allow you to subset it to him yourself, understanding that he is to have a proportion of my allowances for building, and for lime, &c., and to be liable to all the other conditions imposed on the other tenants. A lease to be prepared and executed as soon as the other leases of the estate can be got ready.”
Anderson had been already, under the old lease, in possession of the farm, and now continued it.
Afterwards, a draft tack between Mr Gordon and the tenants of Slains was drawn in the following terms:—
It is contracted, agreed, and ended, betwixt Charles Gordon of Cluny, Esq. heritable proprietor of the estate of Slains, of which the lands and others after-mentioned are a part, of the one part,
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“N. B.— The clause of subscription should bear, that, of the date of the tenant's subscribing, he has got printed copy of the separate articles, and the articles should be recorded as a probative writ, and the tack bear the date of registration.”
Written on the back thus:—
“The seven preceding pages is the draft of the tack which we agree to enter into for our respective farms on the estate of Slains, with this exception, that such of us as have separate
_________________ Footnote _________________ * The words circumflexed were interlined. † The words in italics were in a different handwriting from the rest of the draft.
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The document was then subscribed by 21 tenants, including Wilkins, but not Anderson. He, however, afterwards did so, under this qualification:—
“Mr Anderson agrees to the above, with this difference only, that his tack was a Martinmas entry. (Signed) John Anderson.—Aberdeen, Aug. 30. 1806.”
The draft was never extended, or formally executed.
Anderson remained in possession of his farm until the termination of the stipulated endurance; and Colonel Gordon, understanding that he contemplated carrying off the whole straw of the waygoing crop when he removed, presented an application to the Sheriff of Aberdeenshire, praying him to ordain Anderson and his subtenants “to use the fodder of the present crop upon the farm of Kirkton and others foresaid, and in the mean time to prohibit and discharge them, and each of them, from carrying off any part of the fodder of said farms, hay excepted, until parties are heard and this action decided.” The Sheriff granted interim interdict, which, however, he afterwards recalled, and allowed the tenant to appropriate and remove the fodder in question. Colonel Gordon advocated, and the Lord Ordinary, “in respect of the decision of the House of Lords in the case of the Duke of Roxburghe against Robertson, 17th July 1820,” ordered Informations to the Court; and his Lordship added in a note,—“In a case of this nature, where the practice which has so long subsisted in Scotland is said to be totally subverted by a judgment of the Court of Review, it is necessary that both landlords and tenants should be speedily acquainted with the construction to be put upon such clauses as are now in question, and that some measures should be adopted to protect the rights of the tenants, as, if they shall be compelled to consume the fodder of their last crop upon the ground, the landlord must surely be compelled to find the means of doing so, as it frequently happens, even in more southern parts of Scotland than where the barony in question lies, that it is difficult to get the grain into the barn-yard before the term of removal at Martinmas. If, therefore, a new practice be introduced, as to the consumption of the fodder of the outgoing crop, it may be a matter of the most serious importance for the country and for the Courts, whether some new construction of the clause, as to
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Colonel Gordon petitioned, and produced the draft of the lease, signed by Anderson; and the Court, on the 28th November 1823,“upon the petitioner making payment to the respondent of the whole previous expenses,” appointed the petition to be seen and answered.
In the meanwhile, the same question of construction of the clause in the regulations had been under discussion before Lord Cringletie, with a tenant named Robertson. His Lordship had, in respect of the judgment of the House of Lords in the case of the Duke of Roxburghe against Robertson, remitted to the Sheriff to recall his interlocutor allowing the tenant to appropriate and remove the fodder; but the Court required the opinions of the other Judges upon the legal construction of the clause; and their Lordships being unanimously (with the exception of Lord Cringletie) of opinion, that the tenant was, under that clause, entitled to dispose or carry off the straw of the way-going crop, a judgment was pronounced to that effect;
* and on advising Anderson's case, the Court, on the 10th March and 17th May 1825, recalled their interlocutor, and found, “that the 16th article of the general articles of lease regarding the estate of Cluny, cannot be held as applying to the crop of the last year
_________________ Footnote _________________ * See 3. Shaw and Dunlop, No. 440.
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Colonel Gordon appealed, and the judgment in the House of Lords in Robertson's case having been reversed, † Anderson cross appealed on the specialties in his own case.
Appellant in principal appeal, ( Colonel Gordon).—The general point as to the construction of the clause in question has been decided, and the respondents do not dispute that the judgment of the Court must be reversed.
Respondent in principal appeal, ( Anderson).—The general point must certainly be ruled by the decision in the case of Robertson.
Appellant in cross appeal, ( Anderson).—Independent of the question of construction, the inquiry remains under the cross appeal, Whether the respondent ever put himself under the operation of this clause? It is hard and rigorous in its essence, and contrary to practice. Slight evidence will not yield the presumption that the tenant exposed himself to it. This is not a matter of regulation, which a tenant may be supposed to have assumed by a general reference, but a condition which a tenant would not have accepted had it been distinctly brought before him. It is conceded, that possession will cure informality; and, therefore, Anderson having entered on the missive, the contract was binding. Now, had the question occurred in 1802, would he have been bound by the clause? The reference to Wilkins' lease is general; and that of Wilkins is not more particular. At that time, it does not appear that the regulations were in existence; at any rate, they were not signed by either Anderson or Wilkins. The only other evidence relied on by Colonel Gordon is merely a draft of a lease full of blanks and interlineations, and improbative. Not only that could have been healed by possession, but the tenant did not possess on the lease, but on the missive on which he had already entered. Neither was there any rei interventus to bar the tenant from resetting.
Keay.—We maintain that the tenant could not have been
_________________ Footnote _________________ * See 4. Shaw and Dunlop, No. 12. † 2. Wilson and Shaw's Appeal Cases, (1826-7), p. 115.
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Keay.—We admit that we would be bound by mere regulations. But this is not a regulation or a clause which a tenant could have contemplated.
Miller.—We contend, that although the tenant referred to certain regulations, he did not refer to this unusual clause, which did not relate to a mere matter of regulation. The tenant not having signed the regulations, did not assume the obligation in the clause in question; and the draft lease being improbative, and not followed by possession, did not bind the tenant. Besides, the system laid down by Colonel Gordon was so preposterous, that with his full knowledge it was departed from by all the tenants on the estate. It is quite clear that the interlocutor finding Colonel Gordon liable for the expenses up to the date of his petition with which he produced the draft lease, must stand. It was his duty to have originally come forward with the strength of the case; and the draft lease was, or must be held to have been, in his possession.
Respondent in cross appeal, (Colonel Gordon).—The obligation to grant a lease is identical with granting a lease; and Anderson's notes and missive being followed by possession, became binding. In it, he referred to the conditions of Wilkins' offer; and Wilkins refers to regulations. It is not pretended that there are any other regulations than those in question; and it cannot be believed that any of these tenants would refer to what they were, as Anderson pretends he was, utterly ignorant of. Colonel Gordon's acceptance is quite conclusive.
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Wilson.—Then we have the draft lease signed by Anderson and Wilkins—the former adding a condition to his signature, proving he had carefully weighed the regulations. This draft has been possessed on since 1804. It distinctly refers to the regulations as pars contractus, and as already in existence. It is quibbling to say, that the possession cannot be ascribed to the lease, but to the missive. The possession was continuous, and applicable to both. In truth, the tenant had been in the farm under his old lease, and never ceded possession to re-enter on the missive. The argument, that, in consequence of the system being irrational, Anderson departed from it, shews that he knew what were the regulations. But there is no ground for such a statement; and if the tenants departed from the system contained in these regulations, they did so in breach of their covenant, and in the ignorance of the landlord. There is nothing rigorous in the clause itself. Indeed, it is introduced into the leases of the richest agricultural districts of Scotland, and where the best farming prevails. The previous expenses ought not to have been laid on Colonel Gordon. The tenant must have known of the existence of the draft, and ought not to have argued his case on the assumption that none such had ever been drawn. In point of fact, the draft was in the hands of a person who formerly had been agent for Colonel Gordon, and who only accidentally recovered it after the Court had pronounced their judgment of the 8th July 1823.
The House of Lords ordered and adjudged, “That the said several interlocutors of the Sheriff-substitute and Sheriff-depute of Aberdeenshire, also the several interlocutors of the Court of Session of the 8th July and 13th December 1823, and the 17th of May and 25th June 1825, complained of in the said original appeal, be, and the same are hereby reversed. And it is farther ordered and adjudged, that the said interlocutor of the Court of Session of the 28th November 1823 be, and the same is hereby affirmed. And it is farther ordered and adjudged, that the said interlocutor of the Court of Session of the 10th March 1825, also complained of in the said appeal, be, and the same is hereby reversed, except so far as the same recalls the previous interlocutor of the Court of Session of the 8th July 1823. And it is farther ordered and adjudged, that the cross appeal be, and the same is hereby dismissed by this House, and that
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“The whole fodder to be used upon the ground, and none sold or carried away at any time, hay only excepted; and all the dung to be laid upon the farm the last year of the lease.”
The question that was intended to be argued, related to the interpretation of that clause. It was contended on the part of the tenant, that it did not refer to the last year of the lease. When the case was called on at the Bar, the Counsel very properly abandoned that part of the case; and they abandoned it, on the ground that the very point had been previously decided by this House; and therefore it is unnecessary that I should trouble your Lordships by making any farther observations upon that part of the case. It is admitted that the judgment of the Court below, in that respect, must be reversed.
But another question arose, and a material and important question for consideration, which was this, Whether the clause in question was binding on the tenant Mr Anderson? It was contended, that it was not binding on the tenant Mr Anderson; that he had not subscribed it; and that he had never seen it when the lease was granted, and when he had taken possession of the farm. It is necessary, therefore, that I should call your Lordships' attention to the documents. It appears that Mr Gordon was the proprietor of an estate of the name of Slains, which was divided into several parts; and that in the year 1801 he was about to relet to different tenants the whole of this property. Among the persons who appear to be allowed to take a farm, was a person of the name of George Wilkins. George Wilkins, it appears, wrote a letter, dated the 23d May 1801, in these terms:—
“I agree to the seclusion of assignees and subtenants, and to actual residence by me and mine upon the farm; and to a general rotation of cropping, and any other regulation to be laid down for the whole estate;”
—that was, the whole estate of Slains, which was to be taken by a number of tenants. Lastly, he said, “I engage to enter into a lease in the foregoing terms. The lease to contain all the regulations intended to be laid down for the estate, if by that time digested and ready.” So that if the regulations which were proposed were digested and ready,—I mean those regulations which were to apply to the whole estate of Slains,—those regulations were to be contained in the lease.
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Mr Anderson, who is one of the parties to this appeal, a few days after the letter to which I have referred, entered into this agreement, or made this proposal:—
“Notes of offer by John Anderson to Mr Gordon. A lease of Kirkton as possessed by him, with part of the lands of Crawleys and Muckletown, as delineated on the plan, for 21 years from this Whitsunday and Martinmas next;”
and then the offer being divided into distinct heads, the ninth is in these terms:—
“The tenant to be bound to the conditions of Mr Wilkins' offer,”
—that is the Mr Wilkins to whose letter I before referred your Lordships,—“and to be thirled to the mill of Leask for such corns of the farm as I have occasion to grind; understanding that I am to pay no multure to the proprietor, but to pay the miller for workmanship, which is called bannock and half.” This letter is dated 28th May 1801; and in four days afterwards, namely, on the 2d June 1801, Mr Gordon writes as follows, addressed to Mr John Anderson in Kirkton of Slains:—
“Sir,—I have received and considered your offer to Mr Grant, of 28th May, for Kirkton and Seafield, according to the new arrangement as delineated on Mr Johnston's plan, of which offer the prefixed is an exact copy, and I accept thereof on the footing of Mr Wilkins' offer, and the general conditions laid down by me for the whole estate.”
So that he refers distinctly to the proposition made by Mr Wilkins, which had been accepted by Mr Gordon, and which was to include the general conditions laid down for the whole estate.
Now these general conditions laid down for the whole estate, were contained in a separate paper, entitled, “Articles and Conditions, laid down by Mr Gordon, for letting the estate of Slains.” Those conditions are 21 in number, and the 16th is the condition referred to. “The whole fodder to be used upon the ground, and none sold or carried away at any time, hay only excepted; and the dung to be laid upon the farm the last year of the lease.” Thus the matter stood when this came originally before the Court below; and the case was argued at considerable length as to the construction of this clause, and with reference to the point, to which I have called your Lordships' attention, whether it applied to the last year of the lease; but the Court did not think it necessary at that time to decide the general question, because they were of opinion that, upon the documents to which I have referred your Lordships, there was not sufficient to satisfy the Court that these regulations had been adopted by the tenant Mr Anderson. He did not subscribe this paper; and there was no evidence that he had seen it. Under these circumstances the Court were of opinion in favour of Mr Anderson, and they gave judgment accordingly. Afterwards, however, another document, to which I shall presently call your Lordships' attention,—a draft tack signed by both Mr Wilkins and Mr Anderson,—was produced by Mr Gordon; and Mr Gordon, on the ground of the production of this instrument, which had been signed by the tenant, and by which those regulations, as he contended, were adopted, applied to the Court to recall its former
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The next question is, whether there was sufficient evidence to shew that the articles had been adopted. The instrument to which I have referred, was produced after this judgment had been pronounced, and was in these terms:—
“It is contracted, agreed, and ended, betwixt Charles Gordon of Cluny, Esq. heritable proprietor of the estate of Slains, of which the lands and others after-mentioned are a part, and of the other part, in manner and to the effect following; That is to say, the said Charles Gordon, in consideration of the yearly tack-duty of money and victual underwritten, and of the other prestations, conditions, stipulations, and reservations specified and contained in a separate paper of General Articles, subscribed by him as relative to his leases of said estates, and to be held as part of these presents, hath set, and in tack and assedation let, as he hereby sets, and in tack and assedation lets, to the said and his heirs, secluding assignees and subtenants, legal or voluntary, without the express consent of the proprietor, All and Whole.”
The paper of separate articles, which is here referred to, is the articles and conditions to which I have called your Lordships' attention, and which were entitled, “Articles and Conditions laid down by Mr Gordon for letting the estate of Slains.” This draft tack was signed by the tenants, and among others by George Wilkins, who was a party to the original contract to which reference was made in the contract between Mr Gordon and Mr Anderson, and by which terms Mr Anderson was to be bound; and the draft tack was also signed by Mr Anderson himself in these terms:—
“Mr Anderson agrees to the above, with this difference only, that his tack was a Martinmas entry. (Signed) John Anderson.”
The Court below was of opinion, on the production of this paper, that these articles were adopted by Mr Anderson, and that the original defect, which had led the Court to pronounce the judgment to which I have referred, was completely supplied. I think your Lordships will be of the same opinion. It was stated in argument at the Bar, and I believe was contended below, that this was a new contract; and that if a new contract, then, not having been entered into according
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Respondent's Authorities, (Colonel Gordon).—Countess of Moray, July 23. 1772, (4392.); Grant, July 10. 1788, (15,180.); Bell's Treatise on Leases, vol. i. p. 307.