Scottish Court of Session Decisions

Alexander Lovie, farmer, Fraserburgh, was tenant of the farm of Towie, in Aberdeenshire, under a nineteen years' lease dated 18th September 1872. By the lease it was provided, inter alia, that the rent for the first five years should be £310, and for the remaining fourteen years £320; that the tenant should give over to the proprietor or incoming tenant at the expiry of the first ish of the lease (viz., at Whitsunday 1892) the houses, yards, grass, fallow land, and dung, and that he should then be paid “according to the valuation of men mutually chosen as aforesaid for the value of all sown grass, for the dung made upon the farm subsequent to the time of turnip sowing in the previous year, for the value of labour done to the break for green crop or fallow land in that year.” Two arbiters were nominated previous to Whitsunday 1892, who fixed £670, 17s. as the sum due to the outgoing tenant for the grass, dung, &c., and to recover this sum Lovie brought an action against the trustees of the late G. A. Baird, the representatives of the landlord, who had died.

The defenders admitted that the sum sued for was due, but claimed a right to set off against it certain sums due by the tenant under the lease to them. In regard to these claims they stated—“(Ans. 9) Admitted that the defenders have made a counter claim against the pursuer, amounting to £1002, 1s. 3d., exclusive of interest and exclusive also of the expenses of the Sheriff Court action, which has not yet been determined, and the expense of repairing the farm buildings and fences at Towie, which were not left by the pursuer in the state of repair required by his lease. The said claim is in respect of arrears of rent, interest on improvement money, &c., due by the pursuer to the defenders under the lease in question. The defenders have prepared, and produce herewith, and found upon a statement shewing the rents, &c., due from 1884 to the termination of the lease and the payments made by the pursuer to account of same. In said statement the defenders, without admitting the pursuer's right to demand deduction thereof, and under reservation of and without prejudice to the defenders' right to recover the same, have given effect to the pursuer's contentions in the Sheriff Court action in regard to the interest claimed on the £160 of improvement expenditure and to the abatement of fire insurance premium, so far as relating to the period subsequent to the date of succession to the estate of the said George Alexander Baird as heir of entail foresaid. After making said deductions, and also after giving the pursuer credit for the sum sued for in the present action, the pursuer is still due to the defenders the sum of £134, 4s. 1d., besides interest and expenses foresaid, the defenders' claim to which is hereby reserved entire. The pursuer has never denied his liability for the rent, &c., of which the bulk of the defenders' counter claim is composed.”

The pursuer pleaded—“(1) The defences being irrelevant should be repelled. (3) The counter claims made by the defenders not being liquid, and not being ascertainable in this process, the defences, in so far as founded thereon, should be repelled. (4) The sum sued for being the sum found due by arbiters appointed by the parties, decree as craved ought forthwith to be pronounced therefor.”

The defenders pleaded—“(l)The pursuer being indebted to the defenders for rents and other sums due under the lease in a larger amount than the sum sued for, the defenders should be assoilzied with expenses. (2) The defenders are entitled to set off against the sum sued for the sums due by the pursuer in respect of his tenancy of the farm under the lease founded on. (3) The pursuer not having implemented his obligations under the lease founded on is barred from enforcing any counter obligations incumbent upon the defenders.”

On 13th June 1895 the Lord Ordinary ( Kincairney) allowed the parties a proof of their respective averments on record, and further appointed the defenders to lead in the proof.

The pursuer reclaimed, and argued—The defence was irrelevant, and was an attempt to set off illiquid and unascertained claims against a claim liquid and undisputed. Even the amount of rent due was not liquid, because the tenant disputed that he had had full enjoyment of the subjects leased to him— Munro v. M'Geoghs, November 15, 1888, 16 R. 93; Stewart v. Campbell, January 19, 1889, 16 R. 346; Sivright v. Lightbourne, June 11, 1890, 17 R. 917.

Argued for the defenders—This was an action based on a single deed—a lease constituting a mutual contract, under which one party could not sue the other if he had

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not himself observed its stipulations— Johnston v. Robertson, March 1, 1861, 23 D. 646; Turnbull v. Maclean & Company, March 5, 1874, 1 R. 730; Macbride v. Hamilton & Company, June 11, 1875, 2 R. 775. Even a landlord could not recover his rent as a liquid debt unless he had observed his duties under the lease— Graham v. Gordon, June 16, 1843, 5 D. 1207. The doctrine of liquid and illiquid did not arise here. It applied where the attempt was made to set off against a debt due under a contract something outside the contract. But the claims and counter claims were all under the same contract and must be disposed of together. The defenders' claim, moreover, if not liquid, was at least capable of instant verification.

At advising—