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other on the ground that the defender has injured her character. It does not seem to the Sheriff to be enough to say that both actions will hinge on the same single fact, viz., that of connexion on or about November 1870. This does not necessarily follow. The defender may possibly have seduced the pursuer without being the father of a child born by her thereafter. The pursuer might possibly have been seduced by the defender one week, and might the following week have had connexion with another man who was the father of her child. There may be various reasons why a man who may have seduced a woman may not be liable for the aliment of her child; she may have fathered the child on another who may have admitted the paternity; she may have got decree against another, &c. On the whole, the Sheriff is of opinion that the pursuer is entitled to be allowed to proceed with the present action. The Sheriff may remark that the mode of libelling the time of the alleged seduction, as extending over a period of three months, is peculiar, and ought to be amended. F. L. M. H."
Notes of Cases in House of Lords.
GOWANS v. CHRISTIE, ETC.—February 14.
(In the Court of Session, February 8, 1871,-9 Macph. 485.)
Lease-Minerals-Sterility.-The action was raised by the appellant, a lessee of the freestone and minerals on Baberton estate, to reduce the lease, on the ground that the freestone with which it had been represented to abound was in such small quantity that it could not be worked at a profit. The First Division held that the tenant had undertaken all the risk of failure of the minerals by protecting himself with breaks in the lease at the end of the third, seventh, and fourteenth years; and that he ought to have resorted to the remedy which he had provided for himself. The pursuer appealed.
The LORD CHANCELLOR (Selborne). This was a case in which the L. O. had allowed a proof before answer, such proof being offered in support of certain averments by appt. that his lease of this freestone at Baberton could not be worked at a profit. The respt. had contended that the averments of the appellant were not relevant, and the Inner House had thought that this was a case in which the heavy expense and delay of going into evidence ought not to be thrown upon respts., inasmuch as the averments, even if proved, would be utterly irrelevant, and in so deciding the Court was right. Appt. had under the action to prove what was certainly not an easy task-that the freestone now to be found in these lands could not be worked at a profit, and that, inasmuch as there was no subject-matter for the lease to operate upon, that lease ought to be reduced. This was certainly a startling proposition to make, for, looking at the terms of the lease, we see that appt. seems to have got a lease from Mr. Christie of all the freestone and other minerals whatsoever in the estate. Now, the principal argument of appt. is that, by the Roman Law, which he says is followed in the law of Scotland, there is an implied warranty in a lease that the tenant shall get possession of a subject-matter that is capable of producing profits. No doubt, in some respects, this is reasonable enough. It is reasonable that when a lease is granted there shall be a subject-matter in existence, for, as it is said in England, if the consideration of the contract wholly fails, there shall be an end of the contract; but it is quite a different thing to contend that because the subject-matter exists only in small quantities, and there cannot be a profit made by working it, therefore the whole lease is to be reduced and treated as void.
There were various old authorities and cases referred to, but all these will be found to amount only to this-that if the subject-matter is non-existent or has become exhausted, then no rent can be claimed. The risk as to the quantity and value of the fruits or profits is said plainly to be the risk of the tenant. Now, this is not a case of that kind. It is true the freestone does not exist in the large quantities expected, but there is some, and the mere fact that what there is cannot be worked at a profit is no ground for reducing the lease. The lease contains breaks which the tenant may have taken advantage of, and these breaks were held by the Court below to be designed to meet sufficiently the risk of insufficient freestone being found. Appt. might have broken this lease at the end of three years, but he failed to do so; therefore, on both groundsnamely, that there is no such common law right as he contends for, and that the lease provides the remedy, the judgment of the Court below was right, and ought to be approved.
Lord CHELMSFORD concurred. The law of Scotland was shortly stated in "Bell's Principles." It did not justify the contention of appt. when the older authorities speak of sterility as being a ground for a tenant getting rid of his lease. They obviously mean absolute or permanent sterility, such as that no mineral exists, or if it once existed, it has become exhausted. Moreover, it was obvious that sterility was merely a ground for abatement or suspension of rent; even when it was applicable it was extremely difficult to apply it. Lord Deas says, in his judgment, that if an Egyptian had taken a lease which began with seven years of plenty, it would be hard to say that when the seven years of famine followed, the tenant should then get quit of the lease, and all the loss should fall on the landlord. The present lease seemed to provide a sufficient remedy for the circumstances.
Lord COLONSAY agreed. This was a contract between two parties. No doubt a lease could be granted of minerals as of lands, but it did not follow that all the incidents of an agricultural lease would apply to a mineral lease. No case had been referred to where it had ever been held that the doctrine of sterility applied to a lease of minerals, and all the other cases are merely cases where the subject-matter of the lease was non-existent or had been exhausted. Here the lease showed that the parties had provided their own remedy for what had happened.
Lord CAIRNS agreed. This case began on the view that the tenant had been induced by misrepresentations to enter into the lease; but that ground was found entirely to break down. Then he sought to get rid of the lease on the ground of sterility. But that doctrine was obviously inapplicable. In fact, it was not quite correct to speak of a lease of minerals; it was nothing but a sale out-and-out of the part of the soil occupied by the minerals, and an authority to the tenant to go on the lands and take those minerals away. This was a very different thing from the ordinary mode of cultivation of the surface of the lands by means of crops. The doctrine of the civil law about sterility extended only to cases where the land, the subject of the lease, was non-existent. It did not apply to the operations of modern agriculture, which were spread over a large surface, and often produced profits only after a great lapse of years. There was therefore no such doctrine as appt. relied upon applicable to this case; and though the Court below relied chiefly on the ground that the parties had contracted themselves out of the law, he (Lord Cairns) preferred to rest his judgment on the ground that there was no common law on which appt. could get rid of this lease.
Affirmed with costs.
Act.-Pearson, Q.C., Innes.—Alt.-Sol.-Gen. Jessel, Glasse, Q.C.
JOURNAL OF JURISPRUDENCE.
PAPERS OF SCOTTISH LAW AMENDMENT SOCIETY. 1
ANNUAL ADDRESS. DELIVERED FEB. 1873.
BY JOHN CLERK BRODIE, ESQ. OF IDVIES, W.S., ONE OF THE
THIS Society was formed in October 1868, "to promote the careful and cautious improvement of the Law of Scotland in all its branches, to point out to the Legislature and the public the defects in our legal system, and to suggest appropriate remedies." It is not for us to say to what extent, during the short period of our existence as a Society, we have contributed to promote these important objects; but I am sure we may justly claim to have honestly endeavoured to do so, and I may appeal to the records of the Society to show that it has considered, and very fully discussed, with these objects some of the most important subjects to which the thoughts of those taking an interest in the amendment of the law have been principally directed.
The laws affecting land rights, and more particularly those touching the relation of superior and vassal, the law of entail, the law of prescription, the law of deathbed (now no longer existent), the forms of deeds, and the mode of attesting them, our system of registration in connection with land, the poor laws, the reform or re-arrangement of our legal tribunals, supreme and inferior, and many other subjects of great importance and interest, have been more or less fully discussed; and though these discussions, any more than others elsewhere, may not always have been productive of tangible results, the careful consideration and public debate of such subjects by men competent to understand and sift them has doubtless tended to prepare the way for useful legislation, by
1 The papers selected for publication by the Council of this Society will, by arrangement, be published in the Journal of Jurisprudence; but the Society is not to be understood as becoming in any sense responsible for the other contents of the Journal; and the conductors of the Journal do not assume any responsibility for the style or opinions of the Papers of the Scottish Law Amendment Society.
VOL. XVII. NO. CXCVI.-APRIL 1873.
correcting misconceptions, eliminating the points on which legislation is required, and drawing attention to the methods by which improvement may be best and most efficiently attained.
It may be that, with respect to some of these subjects, the public mind has not yet been sufficiently educated, and that even the legal profession has not arrived at a clear understanding either of the precise evils to be remedied, or of the true remedies to apply. If that be so, there is no reason to regret that the field is yet open for useful discussion. In matters of this importance the great object is to secure the fullest consideration of them by those most competent to form and express an intelligent opinion, and any time that may be necessary for that purpose will generally be amply repaid by the production of well devised legislative measures.
At the first annual meeting of the Society in November 1868 its standing committees were constituted. They were three in number, and were for the following purposes :-First, to promote the assimilation of the law of England and Scotland; second, to consider and report on the marriage law, and any legislation that might be proposed on that subject; and third, to consider and report on our Scottish courts of law. I do not know that I can better use the privilege which, by your kindness, I have of now addressing you, than by adverting, though it must necessarily be very briefly, to each of these subjects, all of admitted practical importance, and which have been thus singled out by the Society itself as the first fields of its labours.
I. The view of the founders of our Society that the assimilation of the laws of England and Scotland is an imperial object of the first importance meets with very general acceptance; and many questions of amendment of the law agitated in Scotland relate to matters respecting which there is really no obstacle to introducing similarity in the laws of this country and England. At the Union of the kingdoms it was the object of Scottish statesmen to preserve her peculiar institutions, and to avert from this country the evils which any violent or rash disruption of them must have speedily produced; but a century and a half effects great changes, and happily in that long period the natives of each country have in great measure learned not only to regard without prejudice the institutions of the other, but to make calm and dispassionate comparison of the laws and usages of the two countries, and to address themselves to the useful inquiry how far what is good in the one may be beneficially adopted in the other. That her neighbours have found so much that is useful to them in the law and practice of Scotland, and have in fact incorporated it so largely with their own system, is a practical testimony to the wisdom with which it has been built up and consolidated.
I may instance, as one branch from which in recent times England. has borrowed extensively from Scotland, and admittedly with great Denefit to herself, our law and practice in bankruptcy; and her
modern system of county courts, now fairly established and highly appreciated in England, is an adoption of the principle of resident judges, represented for ages in Scotland by the jurisdiction of our sheriff courts. Such assimilations are, I am persuaded, for the good of both countries. Absolute identity of law and practice would be as impracticable now as it would have been in 1707; but there are numerous and most important matters in which the law and practice of the two countries might, to the great benefit of both, be so assimilated as to leave no substantial difference between them; and whatever tends in that direction will go to weld the two countries closer together, and eventually to render as impalpable as the ideal line that separates in some places their physical boundaries any difference that may exist in their laws and usages.
Within the last few days a measure has been introduced into Parliament by the present Lord Chancellor, a leading object of which is to fuse into one the English courts of law and equity. The history of the law of England affords an explanation, but, otherwise, it would be difficult to imagine how a system at once so highly artificial, and attended with such great inconveniences, as the separation of law and equity in England, could possibly have been reared; that it has existed so long shows the slowness and difficulty with which important improvements are introduced into old established arrangements; but its downfall, now probably imminent, will remove a most material obstacle to the assimilation of the law and practice of England and Scotland, and afford another instance of the advantage which the sister country may derive by copying some of our Scotch institutions.
But the advantages of assimilation of the law are reciprocal. By adopting the principles of the English law of settlement, Lord Rutherfurd effected immense improvement in the Scotch law of entail, which only those who are familiar with the effects of the entail law prior to that period can properly estimate. The laws of settlement and entail in Scotland and England are now in principle the same; and it is, I believe, very fortunate for both countries that hereafter any measures relating to them which may be promoted in Parliament will certainly attract the attention and interest both of Englishmen and Scotchmen, and that the learning and experience of English and Scotch lawyers will both be available for their discussion and improvement.
Even in matters of inferior importance, the necessity, in legislation, of having regard to the fact that the two ends of the Island contain essentially one people, has of late been plainly indicated. Separate measures may be introduced, and perhaps very conveniently, on such matters as the law of hypothec in Scotland, the law of distress in England, and the game laws in both countries; but it is not now-a-days possible, nor in my opinion is it desirable, to deal with these otherwise than as imperial questions.
At the same time, I believe it to be the case, that there are some