THE EARL OF ELGIN'S TRUSTEES v JAMES WALLS (Court of Session)

The village of Charleston, where the subjects of the lease were situate, was built by Lord Elgin for the accommodation of the workmen employed in his neighbouring mines and collieries, and persons resorting there on business; and Brucehaven brewery, from which the tenant bound himself to purchase the whole malt liquor required for his trade, belonged also to his Lordship.

Walls continued in undisturbed possession of the premises, under this agreement, for upwards of a year, from the term of his entry, at Whitsunday 1830. The rents stipulated in the original missive were, during this period, as well as from the time of the principal tenant's death, regularly paid by his widow to Lord Elgin's trustees, who granted discharges for the same, as received from the tenant's heirs; while, on the other hand, the widow, for behoof of her family, received the grassum and subrents, which Auld obliged himself to pay.

There is no ground for alleging that the action is excluded by homologation or acquiescence on the part of the pursuers, who have never recognised even the original tenant's family as having succeeded to his right by virtue of the missive, and much less acknowledged any right in the defender to possess the subjects. But supposing the accepting of rent from the widow were to be held a virtual recognition of the right of the heir, this would not infer a permission to convey the lease to a third party.

The act of the pursuers, in receiving payment of the rents from the heirs of the original tenant, although aware not only that these heirs had removed from the premises, but that possession was thereafter held by the defender, was as complete a recognition of him as subtenant as the case admitted, where there was no occasion to make any direct claim against him for rent.

The observation, that the agreement in question is essentially different from a contract of lease, is at variance both with the terms of the original missive and the form of the action, which is one simply of removing, and certainly not competent for trying the question, whether a contract of monopoly is transmissible.