Ireland and Others (Mitchell's Trustees) v. Lamb

It was not denied that a different course of cropping had been adopted from what the lease prescribed; in a number of instances fields had been cropped under the six-shift which the lease said were to be under the seven-shift, and vice versa . The result at the end of the lease was, that the defender had a larger acreage under green crop, one-year-old grass, and permanent grass, and a correspondingly smaller acreage under grain and second year grass, than he would have had if he had strictly adhered to the provisions of the lease.

The defender pleaded, inter alia , that the landlord, the pursuers' author, had acquiesced in the cultivation complained of.

“ Note. —… Although no actual consent has been proved in the present case, the long continued acquiescence which has been proved comes so very near to it that the Sheriff-Substitute cannot bring himself to think, either in equity or fair dealing, that the present claim can now be sustained.”

The pursuer on 14th February 1882 appealed to the Sheriff ( Trayner ), who on 3d April 1882 pronounced this interlocutor:—“Recals the interlocutor appealed against: Finds that the defender during the year 1880 cropped the farm in question to some extent in contravention of the terms of the lease, and has thereby incurred liability for the additional pactional rent of £3 per acre for each acre so miscropped in that year, and with this finding remits to the Sheriff-Substitute to proceed with the cause.”

On 5th October 1882, the defender having died, his trustees were sisted in his place, and on 31st October 1882 the Sheriff-Substitute decerned against them for the sum of £236, 18s. 11d. as the amount of pactional rent due by them, but in respect of the pluris petitio of pursuer in making a claim for the year 1879 found him entitled only to one-half of his expenses.