Petition 1766

December 4. 1766. Unto the 4 1 7 6 U n t o t h e T L O R The L O R D S of C O U N C I L and S E S S I O N, T H E / P E T I T I O N #____ O F DO RSTofRe C6RN6Ref tenant in Beg, H u m b l y Sheweth, T H A T the petitioner, in March 17 6 1, obtained from the Earl of Rothes a nineteen years tack of the lands of Beg and others therein mentioned, at the yearly rent o f L. 56: 10 in money, besides some trifling services and customs. The term of entry is declared to be Martinmas 1760, and every year’s rent is made payable at Martinmas in that, and W hitsunday in the following year. By a clause in this tack, it was provided, that, “ in case the said Alexander Shepherd and his foresaids shall think proper to enclose by ditching and hedge, or otherways, any more of the foresaid lands than what is presently enclosed, the said Earl is to allow him thorns for the hedges, and he is to have an addition o f years for each twenty acres of ground he shall so enclose sufficiently.” In order to secure the Earl in the punctual payment of his rent, it was further provided, “ T hat, if it shall happen the A “ said said Alexander Shepherd to allow a second term’s rent to fall due, while the first term’s rent is unpaid, then and in that case, this present tack shall become void and null ipso facto, as if the same had never been granted.” ’ ^ T h at th e p e titio n er having entered into possesio n by virtue of his leas, without los f time st about making those improvements, which, by the above-mentioned clause of histack, ewas trongly ecouraged to. Sgreat wshe spirit and industry with which he executed this plan equally bout five years, he has enclosed, with a sufficient hedge and ditch, upwards of eighty acres of his possessio n. b The expense of these improvements naturally drained the petitioner of his ready money, and frequently rendered it im- posib le for him to pay his rent punctually at the term. But n ow, that the petitioner imagined he had f airly numerous difficulties which a Tenant o f any enterprise isalwys ure toncuter bfore hcan expct oreap the fruits ofhis ndustry; and ow tha eis atlength ia situion tpay uevry sixpenc tha eis atpresnt due tohis landlord, an attempt has been made to take advantage of the other clause in his tack, and to turn him immediately out of possession. It will be unnecessary here to state the history of any arears which the petitioner may have incured, or of any of the pay- ments which he has made of his rent pvious tMarinms 1765, as they are no ways material to the determination of the present question. About that period your Lordships will be informed that the petitioner w as in aretohElL.74:3Sing,bpyfc16wsmdu crop 1763. Upon this, an action was commenced before the sheriff of Fife, in name of the Earl, concluding, that the petitioner should be declared to have forfeited his tack, by allowing a whole year's rent to be unpaid at the same time, contrary to the the irritant clause already recited; and likewise craving a war­ rant for sequestrating and rouping the petitioner’s stocking for payment of the rent; and as no appearance was made for the petitioner, decreet was pronounced by the sheriff in terms of the libel. However this decreet was not put into execution. The Earl, it would seem, and his factor Mr Berry, perceived the rigour o f attempting to take advantage of a clause of this kind for forfeiting a tenant, while the only purpose of that clause was, to secure punctual payment of the rent. The petitioner, soon after the decreet, paid up the whole arrears that were due by him at the commencement of th e process, except L. 3: 8: 2, being the interest charged upon a former year’s rent, and was allowed still to continue in the possession of his farm. O f late, however, a very different plan of conduct has been adopted towards the petitioner. Upon the 30th October 1766, when he was only due to the Earl one year’s rent, viz. the rent for crop 1765, payable in terms of the tack at Martinmas 1765, and Whitsunday 1766, an applica­ tion was presented to the sheriff of Fife, craving, that he would ratify and renew his former decreet of the 3d December 1765, whereby he had found, that the petitioner had incurred the irritancy contained in his tack, and likewise grant warrant for sequestrating and exposing to sale the stocking, & c. N o appearance having been made, the desire of this petition was granted; and although the petitioner is forthwith ready to make payment to his Lordship of every farthing that he is due for crop 1765, and likewise to find most unquestionable security for the rent that is to fall due for the present year 1766, he was nevertheless threatened to be immediately eject ed from his possession. In this s ituation, the petitioner presented a bill o f suspension; which, having come before the Lord Auchinleck Ordinary up­ on the bills, his Lordship appointed the bill to be answered; “ and in the mean time prohibited the rouping of the com- “ plainer’s “ plainer’s goods, and eject in g him from the farm, to proceed for eight days, or till the bill should be advised.” T here- after answers were given in upon the part of the Earl and these were followed by replies and duplies. Upon advising all which, his Lordship, of this date, pronounced an interlocutor in the following terms: “ The Lord Ordinary having resumed the consideration of this bill, and proceedings upon it, and the clause of the tack being pointed out to run, that if a second term’s rent fall due, while the first is unpaid, then the irritancy was to be incurred, refuses the bill, leaving to the complainer to apply to the Lords by petition, i f he be so advised. The case of the petitioner cannot fail of appearing to be at first view, peculiarly hard. An attempt is made to eject him from the possession of a very beneficial farm, which under.the authority of a clause in his tack, he was encouraged to improve, at a very great expence, without ever allowing h im to reap the full benefit of those improvements, and at a time when he is ready instantly to pay down every farthing- that he is presently due of arrears, and to find undoubted security f o r p a y m e n t o f t h e r e n t f o r this current year. He therefore thinks it a duty which he owes to himself and his numerous family, not to omit this opportunity o f applying to your Lordships, for a review of the Lord Ordinary’s judgment. At the time o f making the application to the sheriff upon which he pronounced the judgment in November last, upon the Earl' s summary application, the pet i t i o n e r stood indebted to the Earl of Rothes in L 56: 10, being the rent for crop 1765, together with L. 3: 8: 2 as the balance o f some former arrears. Your Lordships will also be informed, that before obtaining the judgment o f the sheriff arrestments had been used by the Earl, in the hands of certain subtenats, and other persons idebtd to the ptioner. The sums thus arrested amounted to about L. 30; and, in his his answers to the bill of suspension, it was admitted, by his Lordship’s doer, that these debts should be accepted of in payment of the arears due by the petitioner. And the petitioner himself, in the proceedings upon t he bill of suspension, again and again made offer to pay down L. 30, being the whole balance that he was due to the Earl, at the time when the application w a s p r e s e n t e d t o t h e s h e r i f f, and likewise to find most unquestionable security for the rent of the crop 1766. The chief dispute, therfo, betwix hparsm oesolve into this simple question, How far an irritant clause ad jected to a tack, in order to secure payment of the rent, can bepurgd,yofinmath inferior court, before judgment has been pronounced, 0r where theprocdings before the inferior court have ben on absenxe, by tendering payment upon a bill of suspension to your Lordship. T h e petitioner apprehends, that the purpose of inse r tin g an irritant clause of this kind, is not to punish the tenant, for, perhaps a very slight neglect, with so severe a penalty as the foreitu ofa benfical tk; but only tpu itn he ladlor ’s power, whenever the tenant falls in arrear above the sum stipulated in the irritant clause by raising a process of decl arator to force him to pay up these arrears, under the pain of incurring the irritancy, without the possibility of being re­ lieved. I t will not easily be supposed, in the transactions of mankind, that, when a clause of this kind is insert in a contract, it is the meaning of parties, that advantage shall be taken of it in its utmost rigour; and that if the party against whom the irritancy is directed, shall fail but one single moment beyond what he is allowed, he shall not there­ after be at liberty to purge this failzie, altho’ perhaps the other party may not thereby have suffered the smallest prejudice. Your Lordships accordingly have been in use, in all kinds of irritancies, whether contained in statutes, or in contracts of B of any kind, even after the irritancy has, in the strict and and rigorous sense thereof, been incurred, to require also a process of declarator, for having the irritancy declared, that thereby the party in mora ay be put upon his guard, and may have it in his power to purge, before he be excluded by a final sen tence of declarator. T his method of interpreting penal irri­ tancies, has been uniformly regarded as one of the most consi derable branches of the nobile officium of this court. For this the petitioner appeals to the authority of Lord Stair: “ Claus es irritant are so called, because they are designed to make void the rights in which they are contained, in the events therein expressed; they are also calledr e s o l u t i v e clauses, because, in these events, they do resolve the rights wherein they are contained; and sometimes they bear, that, in the casethrin mentioned, the rights shall thereby become null ips o fa cto, without declarator: But, notwithstanding of this, clauses irritant are not effectual, till they be decl ared, where they are exorbitantly penal; for the Lords, ex officio, have power to modify exorbitant penalties, albeit they bear to be liquidate of consent of parties; and for the same cause they have power to qualify these clauses ir­ ritant, and to allow time for purging the same; yet only, if they be truly exorbitantly penal; for such clauses con­ tained in gratuitous rights take their full effect, because then they are not penal, but are conditions and provisions qualifying the right; and therefore they need no declarator.” B.4. Tit. iS. §3. Here is a rule clearly laid down, that, in all cases, except where the irritancy is not penal, (i.e. as his Lordship afterwards explains it, where the right is merely gratuitous), an irritant clause, whether legal 0r con­ ventional, requires a declarator to make it effectual, and that any time before judgment be pronounced the irritancy may be purged., This equitable rule is now firmly established in your Lordsh ips practice, with regard to all cases of reversions, where they are are declared to expire, if not made use o f within a certain time. T his rule has also been long established in the legal irritancy, ob non solutum canonum, with regard to feu-rights in­ troduced by the statute 1597. In some latter cafes your Lordshi ps have likewise found, that irritancies contained in tailzies, where they are usually conceived in the most strict and anxious terms, may yet be purged before declarator. The petitioner apprehends also, that your Lordships prac­ tice has extended this rule to the case of tacks; whether the irritancy is merely legal, or founded, as in the present case, up­ on a clause in the tack itself. Thus, in an ancient cafe, deci­ ded in March 1587, B ishop of Orkney contra Sinclair, a tacksman was allowed to purge at the bar, where it was pac- tioned, that the tack should be null upon failure of payment of the tack-duty for a single year. The same judgment was also pronounced, 4th July 1628, Laird of Sauchie contra T e ­ nants. And in a still later case, “ a tacksman having grant­ ed a verbal sub-set for a year, a declarator of irritancy in­ tented after the sub-tenant was removed, libelling upon a clause in the tack, that, the same should be ipso facto null, upon aligning or sub-setting, was not sustained; the irri­ tancy, as said is, being purged before intenting declarator;” Fountainhall, 1 1 th December 1708, Forsyth contra John­ son and Kennedy. It would be endless to recount all the various cases of this nature, where your Lordships have interposed to mitigate the severity of penal irritancies, and to accommodate them in the most rational manner to the rules both of ju stice and expe­ diency.— That the irritancy now founded upon by the Earl of Rothes, is a penal irritancy in the strictest sense, will hard­ ly be disputed. The petitioner has already informed your Lordships, that the tack is a very beneficial one; and that his improvements by inclosing, &c. have rendered it still more beneficial. To deprive him, therefore, of all the profit which he had reason to expect, during the currency of his tack, is a punishment p u n i s h m e n t t h a t w o u ld b e s e v e r e e n o u g h fo r a p r e t t y h ig h o f fe n c e, b u t g r e a t ly t o o severe for the mere delay of n o t p a y in g a d e b t a t th e t im e a p p o in te d. The petitioner, in the last place, submits it to your Lord- ships, even upon the supposition, that, at the period of the s h e r i f f 's decreet in November 1765, he had truly contraven­ ed the irritant clause in his tack, and that that failure cannot now be purged, whether the subsequent conduct of the Earl and his factor does not virtually import a passing from that irtancy. It is an agreed point, that after the irritancy was declared by decreet of the sheriff in December 1765, t he petitioner having soon thereafter paid up all his arrears except a trifle o f abou t L.3, he was allowed to continue in possession, and no step was taken for ejecting him upon the decreet. It surely could never be the meaning of parties, when the petitioner, after having incurred the supposed irritancy, was allowed, upon purging that irritancy by payment of his arrears to continue in possession of his farm as formerly, that this was to be regarded, as his Lordship must now maintain, merely as a delay o f putting the decreet into execution; but that his Lordship should have it in his power to make use o f the de- creet at any future period, whenever he had a mind. No tenant would agree to possess upon these terms; for in this case, the petitioner would be in a much worse situation than he had possessed upon a verbal tack. He must have been liable, during the whole currency of his tack, whenever his landlord thought proper, without waiting for any legal term, without using any previous warning, to be instantly ejected upon the decreet already obtained; a state of dependence to which it will not be presumed any tenant would submit, nor any landlord would chuse to subject his tenant. As the intendment of parties, therefore, when the Earl received payment of those arrears, which are supposed to have occasioned the irritancy in November 1765, and when the petitioner wa was allowed to continue in possession of his farm as formerly, seems to have been, that the irritancy already incurred should be intirely passed from; the summar application to the sheriff in Nov. 1766 must certainly appear to your Lordships to be alto­ gether irregular and improper. The Earl craves that the sheriff would ratify and renew a decreet pronounced in absence the former year, and which the petitioner does humbly main­ tain had been virtually given up, and the irritancy upon which it was founded intirely p assed from by the Earl, by re­ ceiving payment of the arrears, and allowing the tenant to continue possession. I f it is pretended, that since the de­ creet 1765, the petitioner has incurred a second irritancy; yet the proper method to make that irritancy effectual, was not by applying to get ratified the decreet pronounced upon a former irritancy, which had been already purged by the te­ nant; but by commencing a regular process founded upon this second irritancy, and by that means affording the petitioner a proper opportunity of pleading his lawful defences, or of pur­ ging the irritancy before a decreet was pronounced, if your Lordships are of opinion, that it could be purged upon offer­ ing reasonable excuses for his failure. In his answers to the bill of suspension, the petitioner's cir- cumstances were represented as intirely desperate, and the Earl has pretended to be extremely uneasy about the payment of his rent, if the bill should be allowed to pass, and if he was not immediately at liberty to turn the petitioner out of poses ion, and to expose to sale his whole stocking, agreeably to the warrant granted by the sheriff. But these apprehensions are without the least foundation. The petitioner has already of­ fered to pay up to his Lordship, what, together with the sums arrested, which his Lordship has agreed to receive in payment, willfully satisfy the arrears due for crop 1765, and to find un­ doubted security for the rent of this current year. He has at present upon his farm, of horse and cattle, to the number o f C about about fifty-eight, together with al the laboring instruments; and he has in his barn-yard of his last crop, which was remarkably god, corn an dfoder to the value of more than a year's rent due by him to the Earl. May it herfore please your Lordships, to remit o the Lord Ordinary to pas the bil. According to Juftice, & c R O B B L A I R