Lieut.-Colonel John Gordon of Cluny - Shadwel - Buchanan v. James Robertson and Others - Adam Keay [1826] UKHL 2_WS_115

UKHL
Lieut.-Colonel John Gordon of Cluny - Shadwel - Buchanan v. James Robertson and Others - Adam Keay
[1826] UKHL 2_WS_115
Held (reversing the judgment of the Court of Session), that a clause in articles and conditions relative to a lease regulating the management of a farm, bearing, that “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 on the farm the last year of the lease,” created an effectual prohibition against the tenant disposing or carrying off the farm any part of the straw of the way-going crop.Mr Robertson and others were tenants on the estate and barony of Slains, belonging to Colonel Gordon. No regular lease was granted to any of them, they possessed in virtue of missives, which referred to certain articles and conditions relative to the whole estate, containing mutual obligations on both

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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 leases were to endure for twenty-one years from Whitsunday 1801, and were to terminate at Whitsunday, and the separation of the crop in 1822. None of the tenants had received straw or fodder from the landlord or outgoing tenant.At their expiration, Colonel Gordon understanding that the tenants had intimated an intention of selling the fodder of the way-going crop then on the ground, presented a summary application to the Sheriff of Aberdeenshire, against Robertson and others, and a separate one against Anderson, to have them interdicted from carrying off any part of their fodder, hay excepted, and to ordain them to use it on their farms. The Sheriff granted interim interdict, and appointed Colonel Gordon to say, whether, if the tenants must use the fodder as concluded for in the petition, he would agree to afford them accommodation for that purpose. Colonel Gordon answered, that certain of the respondents might have a barn or byre for a reasonable time; that the possessions held by the other respondents were let to different tenants, over whom he had no control; that there was little doubt that these tenants would be disposed to give what accommodation they could, but that this was a matter with which he had nothing to do, as he was under no obligation to that effect. Thereafter the Sheriff recalled the interdict, and allowed the tenants to remove and appropriate the fodder of their out-going crop according to the established usage of the country, reserving action to them individually against Colonel Gordon, for damages suffered by the illegal detention of the same.Separate advocations were then brought by Colonel Gordon, the one of which against Anderson came before Lord Alloway, and the other against Robertson and others before Lord Cringletie, and in both these cases he relied on the decision of the House of Lords in the case of the Duke of Roxburghe v. Roberton . Lord Alloway reported the former of the cases to the Court on informations in respect of the above decision, which he considered as introducing a new practice into the law of Scotland on this subject; while Lord Cringletie, in the advocation

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Colonel Gordon then raised an action of damages against Robertson and others for carrying off the fodder: and they having reclaimed to the Second Division, and the case of Anderson having come to be advised about the same time, the one Division required the opinion of the Judges of the other, and also of the permanent Lords Ordinary, “upon the legal construction of the clause in the regulations relative to the leases of the estate of Slains therein referred to, especially as in this case, where, while the landlord insists upon the straw of the waygoing crop being used upon the farms, he maintains that he is under no legal obligation to afford upon the farms the accommodation requisite for such use.”Thereafter, on a consultation and conference, the following written opinion was delivered by all the Judges, with the exception of Lord Cringletie, who gave a separate opinion.
“Cases having occurred before both Divisions of the Court regarding the import of certain clauses contained in articles of lease granted upon the estate of Cluny, it seemed expedient that both Divisions, with the permanent Lords Ordinaries, should hold a conference, and consult together; and in consequence thereof, we have perused the whole printed papers given in by the parties; and as the question which has been discussed is of great importance to the landlords and to the tenantry of Scotland, we consider it to be our duty, not merely to give our opinion, but to detail the grounds on which it proceeds.
1st, Although a tack is said to be stricti juris, by which is meant, that the right is to be no farther extended than expressed in the deed, yet it is a personal, consensual, and bona fide contract. It is a contract entered into for mutual benefit and advantage. The obligations therefore arising, either from the nature of the contract itself, or from direct stipulation, are to be interpreted (where interpretation is not completely excluded) fairly, justly, and equitably.2d, The obligations between landlord and tenant, though not expressed in the written contract, have been well understood in Scotland, and are fixed by the common law, and recognized by a long course of practice in the country, and of decisions of the Court, founded mainly on the principles of the civil law.

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Among other things, it has been perfectly fixed, that a tenant, by the nature of the contract, is obliged to use the power given him over the surface tanquam bonus vir, without running out or wasting the soil; and consequently he is, under sundry circumstances (which must be left in arbitrio judicis), tied down, without any express clause, both with respect to the grounds which he may cultivate with the plough, and as to the method of cultivation and husbandry. Following these principles, it has been held and understood in practice, that a tenant cannot sell any dung produced on the farm, previously to barley or bear seed time, in the concluding year of his possession; and that he is not entitled to sell any part of the straw raised from the farm, except that of the last crop.3d, The improvement of agriculture in Scotland, during the preceding century, is much indebted to the practice of written leases to endure for a term of years; and it has been a great object with landlords to make these leases as perfect as possible, partly to prevent disputes about powers, and partly to guide and direct the tenants in such a mode of management, as would be beneficial to all interested.The desire, however, to make the written contract as complete as possible, and the anxiety, and often the ignorance of the parties and their factors and agents, have induced them anxiously to avoid omission, and to express everything, and consequently to insert in the lease many of the obligations universally understood to be incumbent on them, and sanctioned by the common law, independently of any express stipulation. Where the duties of either of the contracting parties have been acknowledged at common law, and have been defined by the undeviating understanding of the country and by practice, the mere expression in writing of those duties, and the obligations arising therefrom, cannot vary or alter the practical execution of them. What therefore would be deemed satisfaction to the common law, must be also deemed satisfaction to the written stipulation.4th, The term of entry adopted in pasture farms, has almost universally been fixed at Whitsunday. The kind of management proper for such farms, naturally suggests that period as prudent, expedient, and even necessary, The entry to arable farms has, in some parts of Scotland, been made by convention at the term of Martinmas after the separation of the crop, or even at the more indefinite period of the separation of the crop itself. But the great proportion of farms in Scotland are either entirely pasture, or have so considerable a part of them pasture, that the term of Whitsunday has been considered as the chief and principal term of entry. Accordingly, by the common

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5th, In the contract of lease, parties may agree to what conditions they think proper; and if they are lawful, they must be made effectual by a Court of Justice; and if plainly and directly at variance with the practice of the country, and the rule of the common law, it must be held by the Court, that the parties did truly mean to make a practice for themselves. But the mere putting into writing an obligation, arising from the nature of the contract itself, and already recognized by the common law, will not bestow on that obligation a different effect from what it would otherwise have had, nor will it warrant such an interpretation to be put thereon as is contradictory to the common acceptation and understanding of such obligation, and such as is adverse to the true and real interest of the parties.6th, The clause in the articles of lease giving rise to the present question, and which is not uncommon in other tacks, is thus conceived:
“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 term of entry to the farm is declared to be Whitsunday; and of course it necessarily follows, that the tenant, to complete his possession, must reap his crop of grain, necessarily sown by him before Whitsunday, after he has left the houses and pasture land. In the articles of lease, no provision is made, or accommodation stipulated to be given by the landlord for the housing of this crop, or for the consumption of the straw which he takes the tenant bound to use , not simply to leave; and yet, what is extremely material, he maintains, ‘that he is under no legal obligation to afford upon the farms, the accommodation

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Clauses, therefore, which are so generally expressed, without imposing co-relative obligations on the part of the landlord for the last year, can be held to apply to the conduct of the tenant only during his actual residence and the subsistence and existence of the lease, and as imperfect for the last year; and of course, that the clause under consideration must be viewed as nothing but an exposition of the common law, which requires the tenant to consume the fodder during the subsistence of the lease in all its parts.7th, In a lease for a period of years, when the term of entry is at Whitsunday for the houses and pasture land, and at the separation of the crop or Martinmas for the arable land, the right of use or possession of the outgoing tenant completely ceases upon the arrival of the term of Whitsunday, and separation of the crop of the year fixed by the parties. But the constructive possession of the tenant as to the arable land is continued, although after Whitsunday he cannot set his foot into the houses or offices, or upon the pasture land. After the separation of the crop from the ground, the outgoing tenant has no right of possession of any kind or nature. The decree of removing, by the law of Scotland, requires the tenant, after the term of possession is past, ‘to flit and remove himself, wife, family, servants, cottars,” &c.; ‘dependants, goods and gear, forth and from All and Whole,” &c.; so that the outgoing tenant, after leaving the houses and pasture land at Whitsunday, has nothing more than a right to come back to reap the crop when it is ripe; and upon which, the incoming tenant can compel him to remove off his land, and out of his way. And unless the landlord, in his new contract of lease, has taken care expressly to reserve a right to use the houses on the lands, either by himself or outgoing

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“8th, The above regulation, allowing the tenant to dispose of his outgoing crop, has been introduced from necessity, and has been universally so understood. It occasions no injustice or damage, and is productive practically of no inconvenience to landlord or tenant. In fact, the rule generally ends in an arrangement between the outgoing and incoming tenant, by which the latter takes the crop or straw at a valuation; and as this is truly for the mutual interest of both, the matter may be said to be commonly, if not always, adjusted in this way; and if this so happens, the landlord has not the least grounds of complaint. But, even supposing that this arrangement should not take place, the landlord will not suffer, as the incoming tenant either brings the waygoing crop of his last farm along with him to his new farm, if this can be conveniently accomplished, or he will take care to provide substitutes for the fodder so taken away by the outgoing tenant, and so prepare, in kind and extent, his crop for the ensuing season. It is his interest to do so, and always has been done de praxi without the smallest objection on the part of the tenantry. The tenant suffers nothing by it, as he again, in

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But we would observe, that a contrary interpretation of a clause, so generally expressed as the present, and left to be extricated by extrinsic regulations to be arranged hinc inde between the parties, would, on the other hand, be productive of the greatest inconvenience, injury, and damage, to both the contracting parties.If the tenant is bound to consume or use the outgoing crop, the right to do which it is impossible to dispute, as it is his property by law, then the proprietor must furnish him with the means of doing so, and, of course, over and above the proper house and offices belonging to the farm, and necessary for the incoming tenant, he must erect proper accommodation for the use of the cattle required, and of the servants necessary to take care of them, and also for the occasional residence of the outgoing tenant to superintend them.Again, on the part of the outgoing tenant, over and above the cattle and horses required for the new farm he is to occupy, he must provide a stock sufficient to consume the fodder of his outgoing crop; he must hire servants to take charge of them; he must have liberty uncontrolled, to come to the farm, and look after those servants; and if he happens to be provided in a farm at a considerable distance, all this must be at a considerable expense, and necessarily at a certain loss. In fact a tenant, according to this system, must, for a certain period after leaving his farm, have two separate stocks and two separate establishments; and what adds to the inconvenience, whenever the crop is consumed, the tenant may have no alternative but to dispose of his extra stock, and to dismiss his extra servants, when nothing but loss can ensue, while e contra the landlord must have two houses, and two sets of stables, cow-houses, barns, and other offices on each farm.To interpret, therefore, the clause contained in the articles referred to, and as contended for by the landlord, would be to frame a new contract for the parties, contrary to the common law and practice of the country, and evidently contrary to their understanding at the commencement of their agreement, and directly injurious to their true interests.Lastly, If the landlord has a desire to alter the common law, consistently with the rights and interests of the parties in this contract, he has two simple known remedies, either to take the tenant bound in the lease to sell the outgoing crop to him or incoming tenant at a valuation; or at once, at the commencement

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These modes are well known in the practice of Scotland, and particularly the last, from the earliest times; and in those districts of Scotland where agriculture has been best conducted, that mode of steelbow has been adopted with much advantage, and other regulations as to the straw of the last crop have been understood and tacitly agreed upon, between the outgoing and incoming tenant, for their mutual comfort and advantage; but such partial usage cannot form the law of Scotland, or regulate the tenantry in situations totally different.Taking into consideration all these reasons, we cannot consider the authority so much relied on by the petitioner as decisive of the present case, and we are persuaded that the judgment must have proceeded in some measure from the want of a full exposition of the common law and practice of Scotland.

We therefore, upon the whole, come to the following conclusions:—

“I. That although, by the common law and practice of Scotland, a tenant is bound to consume the whole fodder of his farm on the lands during the lease, yet that this obligation has never been held to apply to the waygoing crop, and therefore that he is entitled to sell the fodder of his last crop.
II. That the clause made use of in the articles of lease in question, unaccompanied by any corresponding relative obligation on the part of the landlord or incoming tenant, is not more extensive in its application than what would have been implied from the nature of the contract.III. That as no means are provided by the landlord in his articles of lease to carry into execution that for which he contends, and as he maintains that he is under no legal obligation from these articles to furnish any such, we apprehend that he is barred from putting any other construction on the clause, than what has ever been the common understanding of the country.IV. That in this case the tenant is entitled to dispose or carry off the straw of the waygoing crop. The contrary supposition would extend the obligation of the tack against the tenant for near a year after it had expired, after he was removed, and after he ceased to have right to come on the farm, either by himself, his servants, or his cattle, all of which he must do, if he is to use the straw on the farm; for, as the straw is his undoubted property, it is he, the outgoing tenant, who is entitled to the use of it, and not the incoming tenant or the landlord, without paying value for it.”

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Lord Cringletie gave a separate opinion as follows:—

“In this case the question arises relative to the meaning of a clause in general articles and conditions, laid down by Mr Gordon of Cluny, for letting his estate of Slains, in Aberdeenshire. The clause is expressed thus:—
“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 on the farm the last year of the lease.”
The tenant pleads, that notwithstanding of this stipulation, he is entitled to sell or carry away the fodder of the crop of the last year of his lease, because it is the common custom of the country to do so; and the clause in the articles of lease stipulates no more than what is enjoined by common law. The question then is, What is the true meaning of this stipulation?Undoubtedly, it is the custom generally throughout Scotland, to make the term of a tenant's entry be at Whitsunday, as to the houses and grass, and to the arable land at the separation of the crop from the ground in the same year; and as the outgoing tenant must leave his farm as soon as the corn is reaped, and has previously left the houses, the general practice is, that he either sells by public auction his crop, including corn and straw, while on the ground, or to the incoming tenant, by valuation of neutral persons. Even in Berwickshire, the parent of agriculture in Scotland, the entries to farms are the same; but the practice is, that the outgoing tenant leaves the straw of his last crop to his successor. The same takes place in East Lothian, where agriculture is in its highest perfection; and the law provides the means of executing this, as without any stipulation in the lease the outgoing tenant retains the use of the barn-yard, the barns, and other accommodations, till the month of April, often till Whitsunday, and sometimes later in the succeeding year, being at same time bound to thrash out his corn regularly, so as to provide straw for the cattle of the incoming tenant. It appears to me that this practice must be at once seen to be highly useful, and right to be everywhere introduced by special stipulation; because an incoming tenant is thereby enabled to continue the same system of agriculture observed by his predecessor; he is saved the risk of either losing the straw of his predecessor's last crop, or paying an extravagant price for it at a sale; or of bringing from a distance so bulky a commodity as straw to his new farm. And it further appears to me, that Mr Gordon saw this, and meant to introduce into his estate in Aberdeenshire

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I cannot bring myself to think that this clause merely embodies in writing, what is understood to arise from common law. 1st, ‘The whole fodder to be used on the ground.’ To this extent the clause is in conformity to common law; because a tenant during his lease must use straw on the ground, except in the neighbourhood of great cities, where manure is to be had in abundance, in which case straw is universally sold. But the clause goes on to provide thus:
“And none sold or carried away at any time, hay only excepted.”
This is directly in the face of the common practice, which is to sell the straw of the outgoing crop; for surely the last year of the lease is excluded by the words ‘at any time,’ and the exception of hay, which may be ‘sold at any time,’ fortifies the exclusion of the sale or carrying away of the straw. 2d, It is as much the practice of the country to sell all the dung remaining after sowing barley of the last crop, as it is to sell the straw; but by the stipulation in question, all the dung on the farm is to be laid on the farm the last year of the lease, which is another proof of the meaning of that article, to exclude or shut out the common practice of the country. Lastly, In point of execution, the obligation is not laid on the tenant; but it is, that the whole fodder is “to be used upon the ground, and none sold or carried away at any time;” whereby it is to be left gratis to be used by the landlord or incoming tenant. And what appears to me to fortify this is, that although the stipulation relative to the dung be as much against common custom as that to the straw, there has been no sort of dispute about it. I have already mentioned, that there is no need for the law contriving means to carry the stipulation into execution, for the means are notoriously known and used in Berwickshire and East Lothian, and have been so for probably a hundred years.Various cases have been quoted by the tenant Anderson, in support of his argument, that he is entitled to sell his straw; but none of them appear to me to be in any way applicable. In the case of Forrester v. Wright , there was no question about the straw. The dispute related to a quantity of dung, and the obligation in the lease was “to lay the whole dung thereon (viz. the farm), the last year of the tack at bear seed-time.” The

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The tenant has quoted the lease, given by Mr Gordon, of one of his farms to Provost Robinson, as in his own favour; but that lease seems to me to demonstrate, that the article in the conditions of lease, on which this question turns, was distinctly understood on all hands to mean an exclusion of sale of straw at all times, comprehending the last crop as well as during the lease. For Mr Robinson would not consent to this condition of not selling the straw of the last crop, and took a lease to himself in these terms:—
“And the said George and William Robinson farther bind and oblige themselves and their foresaids to give actual residence by themselves, or a proper overseer or servant to manage the farm, and keep sufficient stocking upon the lands hereby let, and to consume with cattle upon the farm the whole fodder raised thereon, hay only excepted, and not to sell or carry away any part of the said fodder, at any time during the currency of the lease; it, however, being understood and agreed, that the said George and William Robinson, or their foresaids, are to be allowed for a reasonable time the use of the barns, and other necessary accommodation for thrashing out their last or outgoing crop; and that they shall receive from the landlord, or incoming tenant, the value of the straw or fodder of said crop, as the same shall be ascertained by persons to be mutually named.”
Now, it appears to me quite undeniable, that Provost Robinson understood the articles in the conditions of lease to mean positively, that the straw of the outgoing crop was to be left

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I have said, that this is the practice in Berwickshire and East Lothian; and I believe, that in these counties the straw is steelbow; viz. that the tenant gets the straw at his entry, and leaves it at his removal; but steelbow must have had a beginning. A landlord must have agreed with his tenant that the straw of the last crop was to be left, and probably got a smaller rent during the lease than he would have obtained if the tenant had sold the straw of the last crop. In the same way here, Mr Gordon appears to me, and I think he was understood by the people on his estate, to have intended to introduce steelbow straw in Aberdeenshire; and I think that he carried that intention into execution by the clause in question; for although there be no provision for executing it, the means are well known, and in very few of the leases of East Lothian or Berwickshire, is anything said on the subject. The law provides the means where the end is in view.In the case of the Duke of Roxburghe v. John Roberton , the clause in the lease was, “And at no time shall the said John Roberton, or his aforesaids, sell or give away any of the hay or straw of the farm, which shall always be spent on the ground.”Observe, 1st, that here is a prohibition equally applicable to hay and straw: 2d, That the tenant was not bound to spend them

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But compare the present case with that of Roberton, and the conclusion will be found to be identically the same. The clause in the articles is thus conceived, “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 lease.” There is no question about the dung in this cause. The only debate is concerning the straw; and such being the point at issue, I cannot see the smallest shade of distinction between this case and that of Roberton. In the latter, the tenant was “at no time to sell or give away any of the hay or straw of the farm, which shall always be spent on the ground;” and in this case, the stipulation is, “the whole fodder to be used upon the ground, and none sold or carried away at any time.” In both cases the whole fodder is to be used upon the ground; that is settled; and as the outgoing tenant is not bound to use it, nothing is required of him that he cannot fulfil. In both cases sale is prohibited at any time. In the former, it is said, that ‘at no time’ shall there be a sale of straw; and in this case the words are, that none shall be sold or carried away ‘at any time.’ It is utterly impossible for me to construe these words so as to interpolate the words ‘except the straw of the outgoing crop.’ The stipulation is, that the tenant shall sell or carry away none of the fodder at any time; and I cannot interpret this so as to say, that the last year of his lease is not ‘at any time,’ and not being at any time, he may sell the fodder of the last or outgoing crop.And I am no way moved by there being no provision for his thrashing out the straw of the waygoing crop; because, 1st, Such practice is no novelty in the best cultivated parts of Scotland, as I have already observed; and, 2d, The common law will compel the landlord, as it has done in Berwickshire and East Lothian, to provide the means of his tenant performing the obligation which has been imposed on him; or failing such provision,

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It is with the utmost deference, as well as with reluctance, that I presume to differ from so many of my brethren; but I feel myself emboldened to do so by seeing a judgment of the highest Court in the kingdom, on a case identically the same, in conformity to my opinion; and when I feel perfect conviction that the tenant in this case must have understood the stipulation in the articles under which he possessed his farm, to have the same meaning which I affix to it, I cannot permit him to give it a different interpretation, in order to pocket the price of the straw.I have made no observation upon any of the specialties in the cause, because I do not think that these were intended to be submitted to my consideration.”In consequence of these opinions, the Second Division, on the 11th March 1825, found, “That in this case the tenants are entitled to dispose or carry off the straw of the waygoing crop. Therefore, alter the interlocutor complained of; dismiss the advocation, and remit the cause simpliciter to the Sheriff, and decern, &c.—Find the petitioner entitled to expenses, * and at the same time assoilzied in the action of damages.” The First Division also, after having previously to the consultation pronounced a judgment on a specialty (which was afterwards explained did not exist), and stating that they had consulted with the other Judges, “in relation to the general question at issue, between the parties in this cause, 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 of the lease, and that the right of the parties respecting the same must be regulated by the common law and usage of the country; and therefore, repelled the reason of advocation,—remitted the case simpliciter, to the Sheriff;” and found Colonel Gordon liable in expenses. †Colonel Gordon then entered an appeal, both on the advocation and the action of damages, against Robertson and others.Appellant .—The clause is explicit and unambiguous, and ought to be interpreted according to its obvious meaning and import. The articles and conditions had never been departed

Footnote

* See 3 Shaw and Dunlop, No. 440.† † See 4 Shaw and Dunlop, No. 12.

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Respondents .—By common law and practice, although the fodder of the current year must be consumed on the farm, yet the tenant, except in the case of steelbow, is entitled to sell or dispose of the fodder of the waygoing crop, as he pleases, and there are obvious and sound reasons for such a rule. The straw is the exclusive property of the tenant, and if he cannot take it away, he must lose it altogether; for the appellant denies that he is bound to afford accommodation to the outgoing tenant, and without that accommodation the tenant cannot use the fodder on the farm. Even if the outgoing tenant had a legal right to barns, &c., for that purpose, and had access to them, how could he be expected to keep up two establishments? The clause, in point of fact, was not intended to control the rights of parties as at common law, and the practice of the country, but merely to express the law of landlord and tenant; therefore, what is satisfaction to law, is satisfaction to this stipulation; no doubt common-law rights may be altered or relinquished, but that is not to be presumed from words of vague and doubtful meaning. ‘At any time,” obviously refers to the currency of the lease; but the waygoing crop is reaped after the termination of the lease, and the removal of the tenant. The clause was merely introduced to corroborate the obligations implied in a lease, and not to abrogate them. The respondent's pleas are supported by various authorities in the law of Scotland. The case decided in the Court of last resort, is materially different from the present; besides, the ‘articles and conditions’ in question, were departed from by the tenants, and the departure sanctioned by the landlord.The House of Lords found, that the tenants were not entitled to carry away the straw or fodder of the waygoing crop; and therefore ordered and adjudged that the interlocutors complained of be reversed, and that the Court of Session proceed to decide the other points of the cause.

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Lord Gifford .—My Lords, there is a case, which stands for the judgment of your Lordships, which involves a question of considerable importance, not only in itself, but as it affects a judgment of your Lordships” house: I refer to the case of Gordon and Robertson. I must confess, I approach the consideration of this case with considerable concern; and I hope your Lordships will excuse my saying so when I state the nature of it.My Lords,the appellant in this case is Lieut.-Colonel Gordon, and the respondents were tenants of different farms belonging to the extensive Barony of Slains. The leases were all of the same date, and were for 21 years, and expired at Whitsunday and the separation of the crop in 1822. My Lords, with the exception of one tenant, Mr Robinson, none of the tenants possessed under regular leases, but all of them held by separate missives, as they are termed, in reference to which certain printed articles and conditions were laid down by Mr Gordon, relative to the cultivation of his estate. My Lords, it may be necessary that I should call your Lordships' attention, in this stage of the cause, to the articles and conditions which were proposed by Mr Gordon. They were to be for “a twenty-one years' lease to be granted, and the tenant to be tied down to actual residence; assignees and subtenants, legal or voluntary, without the proprietor's consent, to be excluded; the farms to be let, and marches lined out and fixed, agreeable to Mr Johnston's plan; supposing the above rent to be 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.”Then there is this stipulation, by which My Gordon was to allow “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; the tenants finding all the carriages, and recompensing the outgoing tenant where he has any claim for meliorations.”Then, if the tenant wishes to make enclosures “by making the outer fences stone dykes, 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.”I am detaining your Lordships by enumerating these articles, in order to show you the particularity of them, and the nature of the stipulations, both on the part of the tenant and on the part of Mr Gordon. Then it stipulates, ‘that the victual rent should be payable' twixt Yule and Candlemas, and the money rent at Martinmas and Whitsunday each year; and the tenants should be allowed to give houses, yards, and portions

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My Lords,the respondents entered on the farms under these conditions at Whitsunday 1801. Your Lordships perceive, therefore, that the term expired in 1822, and of course before the last crop was taken from the ground. Mr Gordon, discovering that the tenants meant to insist that they had a right to take the crop and carry off the straw, he made an application to the Sheriff of the county, setting forth the terms of the lease, and stating that his prayer was to ordain the tenants to use the fodder of the present crop upon the respective farms where it presently grows on the lands of Slains; and in the meantime to prohibit and discharge them, and each of them, from carrying off any part of the fodder of the said farm. The object of that proceeding was to prevent their carrying off the straw of the last crop. The respondents appeared to resist the application, on the grounds which have been already alluded to. The Sheriff, on the 4th November 1822, gave the following deliverance:—
“Before farther answer allows the procurator for the petitioner to see the quadruplies, and appoints the petitioner to state whether or not, on the supposition it shall be found that the respondents must use the fodder in question, as concluded for in the petition, the petitioner will agree to afford them accommodation for that purpose, as stated in the quadruplies,”
which was a sufficient barn for threshing out the crop, and a sufficient accommodation of houses to contain their cattle while consuming the straw; and finally, he pronounced an interlocutor, by which he allowed the tenants “to remove and appropriate the fodder of their outgoing crop, according to the established usage of the country, reserving action to them individually against the petitioner for damages suffered by the illegal detention of the same.”The appellant brought the judgment of the Sheriff under the review of the Court of Session. A bill of advocation was passed, and the cause came before Lord Cringletie, and, as Lord Ordinary, he pronounced an interlocutor, in which he stated, that, “In respect of the judgment of the House of Lords, in the case of the Duke of Roxburghe against Roberton, remits to the Sheriff to recall the interlocutors complained of, and to hear the parties on the allegation, that the articles of regulation for the estate of Slains were departed from, and never observed during the leases of the respondents, as well as any of the other points of the cause and dispenses with a representation.”

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Your Lordships perceive that the Lord Ordinary remitted the cause to the Sheriff to recall his interlocutors; but against this interlocutor the respondents presented a reclaiming petition. The cause came before the Second Division of the Court of Session, and they pronounced, on the 22d of May 1824, the following interlocutor:—
“The Lords of the Second Division, in terms of the Act of Parliament thereanent, require the opinions of the Judges, either as a collective body or as individual Judges, upon the legal construction of the clause in the regulations relative to the leases of the estate of Slains therein referred to, especially as in this case.”
In consequence of this, their Lordships of the First Division, and the permanent Lords Ordinary, took the case into consideration; and their Lordships of the First Division and the permanent Lords Ordinary, with the exception of Lord Cringletie, concurred in an opinion altogether favourable to the respondents, “being of opinion that the respondents were entitled to carry off the straw of the waygoing crop.” My Lord Cringletie was the single Judge dissenting from that opinion; and he dissented from it mainly upon the principle of a decision to which I will call your Lordships' attention, considering that this case could not be distinguished from a case which was heard by your Lordships' House in the year 1820, of the Duke of Roxburghe v. Roberton .It appears that by the custom of Scotland, (when I say the custom of Scotland, I mean the prevailing usage of a great part of Scotland,) where there is no stipulation between a landlord and tenant with respect to the straw or fodder, the tenants usually enter after the regular expiration of the term to reap the crop; and therefore, having the crop to reap after the expiration of their term, are entitled, where there is no stipulation to the contrary, to take away the straw of the waygoing crop. And, my Lords, I observe the learned Judges, in giving their opinion, talk of this—sometimes as the common law—and at others, as the custom of the country; but it appears not to be universally prevailing, for in parts of Scotland, particularly in East Lothian, I think, and Berwickshire, the custom prevails, that the incoming tenant has the straw of the last crop of the outgoing tenant, and then he leaves on the land he is quitting the straw of his last crop: And this is called receiving in steelbow.The learned Judges appear to have been of opinion that this common law or custom ought to prevail in this case, notwithstanding the stipulation that the tenant has entered into, and although the articles in question bound him not to carry off or sell at any time; the words of the obligation being, “the whole of the 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 on the farm the last year of the lease.” They consider that, with reference to the usage, it ought to be construed with the exception of the last crop; and no less than thirteen of the learned Judges (which makes this a painful case to deal with, if your Lordships shall differ from that opinion) expressed an elaborate opinion, that the custom of the country, or the common law with respect to the waygoing crop, is to prevail, notwithstanding the stipulation introduced into these

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But I should state to your Lordships what they admit in the 5th division of their opinion. They state that, “In the contract of lease parties may agree to what conditions they think proper, and if they are lawful, they must be made effectual by a court of justice, and if plainly and directly at variance with the practice of the country and the rule of the common law, it must be held by the Court that the parties did truly mean to make a practice for themselves; but the mere putting into writing an obligation arising from the nature of the contract itself, and already recognised by the common law, will not bestow on that obligation a different effect from what it would otherwise have had, nor will it warrant such an interpretation to be put thereon as is contradictory to the common exception and understanding of such obligation, and such as is adverse to the true and real interests of the parties.” Then they say that this clause, “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,” is not an uncommon provision in other tacks.

They conclude thus:—

“Clauses, therefore, which are so generally expressed, without imposing co-relative obligations on the part of the landlord for the last year, can be held to apply to the conduct of the tenant only during his actual residence and the subsistence and existence of the lease, and as imperfect for the last year; and of course, that the clause and the consideration must be viewed as nothing but an exposition of the common law, which requires the tenant to consume the fodder during the subsistence of the lease in all its parts.”
They also say, that ‘If the landlord’—I beg your Lordships' attention to this—“If the landlord has a desire to alter the common law consistently with the rights and interests of the parties in this contract, he has two simple known remedies, either to take the tenant bound in the lease to sell the outgoing crop to him or incoming tenant, at a valuation, or at once, at the commencement of the new lease, to purchase the right of the fodder, and to declare the same steelbow; and so the straw of the outgoing tenant will be deliverable in succession from tenant to tenant. These modes are well known in the practice of Scotland, and particularly the last, from the earliest times, and in those districts of Scotland where agriculture has been best conducted, that mode of steelbow has been adopted with much advantage, and other regulations as to the straw of the last crop have been understood and tacitly agreed upon between the outgoing and incoming tenant, for their mutual comfort and advantage, but such partial usage cannot form the law of Scotland, or regulate the tenantry in situations totally different.”Now, my Lords, I come to a passage which I read with considerable pain, because I apprehend that the decisions of your Lordships' House, whether they are on Scotch cases, or whether they are on English cases,

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Your Lordships will perceive, that in this case, as well as in the case of the Duke of Roxburghe v. Roberton , which is referred to in a part of this judgment, there was a written stipulation between the landlord and the tenant; and if that written stipulation be distinct and clear in its terms, (it being competent for the parties to make those stipulations they think fit,) no common-law usage can negative the contract of the parties. I have read to your Lordships a number of the stipulations, and your

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My Lords,this case comes then to a very narrow question—What is the meaning of the stipulation in question? But what was the question in the Duke of Roxburghe against Roberton? After all the attention I have been able to give to this case, I am perfectly unable to find any cause for the observations to which that judgment of your Lordships has given rise; and I did take the liberty of saying, when the case was before your Lordships on a former day, that, considering the expressions which had been used by the learned Judges, I thought it was incumbent upon your Lordships to come to a solemn, deliberate, and dispassionate consideration, uninfluenced by anything which might have passed in the Court below upon the subject of that judgment; and I very much regret that in this case there should have been introduced into the printed papers, after the well-considered, deliberate opinions of the learned Judges of the Court below, any hasty observations made at the time this cause was there heard, and which one cannot conceal from one's self were intended to throw discredit upon your Lordships' judgment in the preceding case, being intended to have the effect of showing that your Lordships' judgment had not proceeded with that attention to the law of Scotland which ought to be paid to it.I have now a note of the judgment of your Lordships in the case referred to, and I will state to your Lordships what that case is, which I will read from the report published by Mr Bligh,—‘ In 1790, a farm called Newton, being parcel of the entailed estate of Roxburgh, was let by John, Duke of Roxburghe, for twenty-one years from that date, to John Roberton, the respondent. In the lease there was a clause in these words: Farther, the said John Roberton, or his foresaids, at their removal from the said lands, shall be obliged to leave upon the ground all the dung and manure of the preceding year, but the value thereof shall be paid to them by the succeeding tenant, as the same shall be ascertained

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My Lords,that case was argued here precisely on the same ground as the present, namely, the custom and usage of the country; and that, therefore, that custom and usage was to control the natural meaning of those words, and that those words were to be made consistent with the usage and custom. On the other hand, it was contended, that usage and custom had nothing to do with it, but that the House must be governed, and the Court of Session must be governed, by express agreement.The Lord Chancellor pronounced this judgment, which I am the more anxious to read, that your Lordships may see the grounds on which the Lord Chancellor proceeded. After stating the terms of the tack, he says — “The tenant relies upon the provision expressed, that the dung and manure is to be left upon the ground, and paid for, according to a valuation, but that as to the hay and straw, it is not to be left or paid for; the absence of any such provision (according to this argument) shows

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The dung and manure is to be left on the ground, and paid for. An inference from the provision is drawn, that what, according to the expressions of the contract, the tenant is not bound to leave, he may carry away. But that is not a conclusive argument, because it is necessary to attend to the further provisions of the lease. Nothing is said as to any payment for hay and straw; and the clause which provides what shall be done at the removal—that is, the expiration of the lease—stipulates, that the hay and straw of the farm “shall always be spent on the ground,” not that the tenant shall spend it—an expression which might possibly lead to a different construction. The provision that the tenant shall at “no time” sell or give away the hay or straw, is absolutely incompatible with the supposition of a right in the tenant in any manner to eloign those articles during the last year, if indeed the express words of the instrument leave us at liberty to enter into conjectures as to any intention except to the last year of the lease.The case put for the appellant, of an accumulation of hay and corn during three years, or more, which might be found upon the farm, during the last year, shows the consequence to which the argument for the respondent would lead. The manure is collected and prepared by the labour of the tenant, but hay and straw are almost the spontaneous growth of the land. It might be reasonable, therefore, that such a difference as we find in this contract, should be made as to those respective articles.

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The tenant, in this lease, was to enter upon the arable lands at the separation of the crop, and to quit at the corresponding period. In such a case, where no special provision is made by contract, the law of custom may qualify the right of the incoming tenant, and give to the outgoing tenant certain privileges for the purpose of threshing, after the expiration of his lease. That is a question upon the customary law of Scotland, which it is not necessary that we should deal with in this case. Assuming or admitting the existence of such law, founded on custom, we have here to construe a written contract, and if the Scotch laws are to be administered on the same principles as English law, or any law founded on principle, we must hold that the engagement of parties to each other by the express stipulation of a written instrument, exclude all consideration of the custom of the country.Resting upon such principles for the direction of our judgment, can we hold that the words, “at no time shall sell or give away the hay and straw, but that the same shall always be spent on the ground,” are consistent with a right in the tenant to collect hay and straw during the last year, or any preceding years, and to carry away what he has collected at the expiration of the tenantcy?” Judgment reversed.My Lords,in that case his Lordship felt himself bound to recommend the reversal of the judgment of the Court below, and it was accordingly reversed, taking care to express a declaration to this effect, that according to the true intent and construction of the tack, the tenant was not entitled to sell or give away any of the hay and straw at any time during the continuance of the tack, or at the time of the expiry of the tack.In this case, the words are almost the same, or similar to those which were used in the Duke of Roxburghe's case; “and at no time shall the said tenant sell or give away any of the hay or straw of the said farm, which shall always be spent on the ground.” The language of the stipulation in this case is this:
“The whole fodder to be used upon the ground, and none sold or carried away at any time, hay only excepted.”
Now, my Lords, in addition to the judgment as stated in the report, the parties, in some of the papers, have printed what is supposed to be, and probably is, a correct judgment, as taken from the short-hand writer's notes. I do not perceive there is any material difference between the two, though, in point of language, there may be some variation; but I do not perceive, in the shape of arguments, any difference between the two statements of the noble and learned Lord's speech. He there concludes by saying, “That the very object of having a written contract in some cases, is to shut out the custom of the country, and where the landlord and his tenant agree that the tenant at no time shall take hay or straw off the premises, that can never mean that he shall not do so for twenty years, but that in the last year he shall employ himself at any time, from the beginning of January, to the last day of December, in taking it off the premises.” His Lordship says, “I remember a case that occurred when I was much younger than I am now, on the question of copy-right, when this House required the attendance of the learned Judges, and they

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My Lords,therefore, in point of principle, I should say, that no distinction can be raised between the two cases, and, with great deference, I should have thought the one must have been governed by the other. Here is a decision proceeding upon as solemn and sound a principle as can well be seated, namely, when you have a written stipulation between a landlord and tenant, you are to construe that stipulation according to the fair meaning and import of the language used, and that it ought not to be controlled by any supposed custom or usage which might govern the relation between them in the absence of such express stipulation.There is another circumstance to which I would direct your Lordships' attention, in the argument of the learned Judges in the Court below. In pronouncing their opinion, they take notice, that one of the parties who was about to enter into an agreement for a tack of a similar kind with Colonel Gordon, had his tack regularly reduced into a formal shape; and it is obvious that that gentleman, fully understanding the object of that stipulation, says, I am not content with it, but I will have a different stipulation inserted in my case, and accordingly your Lordships will find, that in the tack granted to Mr Robinson, there is this stipulation which is stated in Lord Cringletie's judgment:
“And the said George and William Robinson further bind and oblige themselves, and their foresaids, to give actual residence by themselves, or a proper overseer or servant to manage the farm, and keep sufficient stocking upon the farm hereby let, and to consume with cattle upon the farm the whole fodder raised thereon, hay only excepted, and not to sell or carry away any part of the said fodder at any time during the currency of the lease; it, however, being understood and agreed that the said George and William Robinson, and their foresaids, are to be allowed, for a reasonable time, the barns, and other necessary accommodation for threshing out their last or outgoing crop, and that they shall receive from the landlord, or in coming tenant, the value of the straw or fodder of said crop, as the same shall be ascertained by persons to be mutually named.”
Why, my Lords, the learned Judges seem to think, that that stipulation being inserted in Mr Robinson's tack, shows what is the understanding between the parties as to the nature of that stipulation to which I have called your attention in the original article. My Lord Cringletie observes upon this:its value, and took a lease to himself, departing so far from the stipulation in the articles of lease; whereas the tenant, in this case, possessed in virtue of the articles.”
“Now, it appears to me quite undeniable that Provost Robinson quite understood the article in the conditions of lease to mean positively that the straw of the outgoing crop was to be left without payment for it; and, not consenting to that, he agreed to leave it, but stipulated to receive

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Therefore he says, and I own it appears to me that the conclusion is well founded, that, looking to Robinson's stipulation, which he insisted upon having in that lease, that without that stipulation, he was bound to leave the straw belonging to the waygoing crop; but he was at liberty to say, as this tenant might say, that he would not consent to such a contract unless paid for the value of the straw by the incoming tenant. Now, my Lords, you will observe, that it is not, as the learned Judges think, that that stipulation enabled him to carry away the straw; but he felt that that stipulation bound him to leave the straw, and therefore he says, I will contract to receive from the landlord, or the incoming tenant, the value of the straw or fodder of such outgoing crop; therefore, if any argument is to be drawn from the stipulation in Mr Robinson's tack, it bears against the general, reasoning of the learned Judges.Upon the whole, my Lords, it appears to me, that, acting upon the sound principle laid down in the Duke of Roxburghe's case, and looking at the express stipulation entered into by these parties, conceiving, as I do, and as it is admitted by the learned Judges, that it is competent for parties to make this stipulation, contrary to, and in spite of, any custom or usage against it, I cannot arrive at any other conclusion than that the tenant is bound not to carry off the crop at any time during the continuance of that lease.My Lords,I may just read to your Lordships the last part of my Lord Cringletie's judgment, where he is commenting upon the language of the stipulation in the case of the Duke of Roxburghe v. Roberton . He says, “Compare the present case with that of Roberton, and the conclusion will be found to be identically the same. The clause in the articles is thus conceived:
“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.”
There is no question about the dung in this cause; the only debate is concerning the straw; and such being the point at issue, I cannot see the smallest shade of distinction between this case and that of Roberton.” He also says, “I cannot agree that the last year of his lease formed any exception. It was excluded by the words “at no time.” This Court thought otherwise, but the judgment was reversed in the House of Lords; and I confess that I assent to every word that is contained in what is given to us as the opinion of the noble Lord on the woolsack; it is in precise conformity to what I consider to be the true interpretation of the clause in Roberton's lease; it is in precise conformity to the practice of Berwickshire, East Lothian, and must be so whenever such a stipulation is made.” Therefore, his Lordship concludes with saying, “It is with the utmost deference, as well as it is with reluctance, that I presume to differ from so many of my brethren, but I feel myself emboldened to do so by seeing a judgment in the highest Court of the kingdom identically the same in

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My Lords,looking carefully at this case, I do not see how it can be distinguished, either in its circumstances or upon principle, from the case of Roxburghe v. Roberton ; and, considering it to be of the utmost importance, in the administration of the law, that your Lordships' decisions should be followed up (for otherwise the greatest uncertainty must prevail); and much as I lament differing from so many learned persons, who have pronounced their opinions upon this case hostile to the interests of the appellant, yet, as it appears to me that that decision manifests great opposition to the principle in the case of the Duke of Roxburghe v. Roberton , I feel myself bound to come to the conclusion (notwithstanding that conclusion leads me to advise your Lordships to do that which was done in the case to which I have first alluded), namely, to reverse the judgment, accompanying it with a declaration that the tenant was not entitled to sell, or carry away, any of the straw of the last or waygoing crop; and that, with such declaration, it should be remitted back to the Court of Session, and, further, to do that which, in this case, should be just and necessary.My Lords,as I have already stated, it will be distinctly understood by the Court below, that I do not profess to understand what the usage in Scotland is; but, my Lords, if this had been a question turning upon what the usage is in Scotland, and whether the tenant had conformed to that usage or not, you would have had that distinctly ascertained by evidence laid before you for that purpose; but I would say, in this case, as the Lord Chancellor said in the Duke of Roxburghe's case, whatever the custom and usage may be, in the absence of express stipulation, I give my opinion upon the express stipulation. This contract, which appears to be quite unambiguous and clear, contains a stipulation, which was competent for the landlord to require, and the tenant to give; by which the tenant bound himself not to remove any straw during the time he took the farm under these articles, and consequently prevented him removing it during the last year of his possession.My Lords,there is another case on the same subject, arising out of the same transaction, and between the same parties, in which I apprehend your Lordships' judgment must be the same as in that I have just asked your opinion. In that case, the judgment was adverse to the claim of Colonel Gordon; but if your Lordships think that the judgment must be reversed in the other case, the same decision must follow in this, namely, to reverse the judgment, and to remit both the causes back to the Court of Session, with that declaration which I have suggested to your Lordships.Appellant's Authorities .—4 Stair, 42. § 21. 1 Ersk. 1. 50. 3. 3. 87. Duke of Roxburghe v. Roberton , 28th June 1816, reversed in the House of Lords, 17th July 1820. (2 Bligh's reports, 156).

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Respondents’ Authorities.— Respondents’ Authorities.— 1 Bell on Leases, p. 323, (Edit. 1825.) Hamilton, 15th Jan. 1824.—2 Shaw and Dunlop, No. 586. Gordon v. Falconer , 8th March 1822— I Shaw's Reports, No. 440. Wemyss, 16th June 1801, (No. 7. ap. Tack.) Forrester, 10th Feb. 1808, (No, 16, ib.) Fraser, 7th March 1823. 2 Shaw and Dunlop, No. 256.Solicitors: J. Chalmers, J. Campbell, Solicitors.