GEORGE JOHNSTON v JOHN INGLIS (Court of Session)

Agreements for enlarging the limits of the working were subsequently entered into in 1823 and January 1830; and in November 1830, being the commencement of the last year of the lease, it was verbally agreed between the parties, that the tenant should be allowed to quarry a piece of rock within the eighty feet from the Lanark road mentioned in the original lease.

In virtue of letters of horning proceeding on the lease, and a relative account made up and subscribed by the landlord in terms thereof, the tenant was charged for payment of the last year's rent, he being then in possession by tacit relocation for an additional year. Against this charge a bill of suspension was refused by the Lord Ordinary. A second bill was presented on the grounds, 1. That as the lease does not specify any particular sum of rent, or make any limit to the debt, it could not warrant diligence.

The charge is not given for sums due in virtue of the lease, the whole of the stones, (with a small exception,) the price of which is now in question, having been quarried, under the verbal agreement of November 1830, from rock not comprehended, but expressly excluded in the original lease.

The tenant has brought an action of damages against the landlord for not implementing an agreement entered into between the parties in January 1830, by which the original limits of the working were enlarged, and also for having interdicted him from prosecuting his operations under the verbal agreement of November 1830. The principle of the rule, that a liquid debt cannot be compensated by an illiquid claim, as it has been applied in cases between landlord and tenant, is, that the lease itself liquidates and fixes a certain sum of rent, which is not done by the lease in question.

Answered —1. Such stipulations as those which here occur in regard to the mode of liquidating a charge against the tenant as a warrant for diligence, have been found effectual in questions as to bonds for cash-accounts, bonds of caution for bank agents, and others of a similar description. There is no allegation here of any deviation from the prescribed manner of making up and certifying the account, or of an overcharge, and, therefore, the objection in point of form is groundless.