Dec. 10, 1875. Your Lordship suggested that either of two things would justify the Court in No. 45. putting an end to the contract-1st, if there were greater risk than the parties had contemplated at the time of entering into the contract; and, 2d, if there Miller v. were no reasonable prospect of profit being made. I agree that the second might Walker. put an end to the contract. But I do not think that a greater risk of loss in testing the mine would have that effect. Although this is a matter for the discretion of the Court, we have a duty to protect the defender as well as the pursuers. It seems impossible that this action, if it is to come to the result pointed at by the Lord Ordinary, can be unattended with loss to Mr Walker. He has devoted his time and attention to this mine, and has been thereby diverted from other schemes, and probably kept from making profit in other ways. If it be a reasonable speculation, and he is prepared to go on with it, we are not entitled to interfere, unless for very strong reasons. My difficulty is, that I do not think it proved that there are any such strong reasons here. The partners entered into the joint adventure with their eyes open, and whatever may occur hereafter I do not think there are as yet sufficient grounds for us to interfere. LORD ARDMILLAN.-I am of opinion that the Lord Ordinary has rightly disposed of the reductive conclusions of this action. There is no sufficient evidence, indeed there is no evidence, of fraud, or of wilful misrepresentation inducing essential error. I do not think that there was any fraud or intentional misrepresentation on the part of the defender. The parties entered on a mineral speculation, or joint adventure, in regard to which the defender, Mr Walker, having the best means of judging, and being best acquainted with the locality and with the nature of the speculation, was the most eager and sanguine, and he may have expressed strongly his hopes and expectations. These, it seems to me, he honestly entertained and communicated. But there is nothing in his conduct which can sustain the conclusion for reduction. The remaining conclusions,-declaratory and petitory,-are rested on different grounds, and cannot be similarly disposed of, though they also are of a nature requiring careful consideration. These conclusions, depending chiefly on evidence, are peculiar. The application of the rules of the law of joint adventure to the facts of this case is attended with difficulty. Mr Walker held a lease from Mr Leisk of the minerals on or in the island of Haaf Grunie for nineteen years. The "rent or royalty" is 15s. a-ton on all chromate ore lifted. There is no fixed rent. There is no obligation on the tenant to work the ore; but, if he work it, he pays 15s. a-ton on all be lifts. That is the only obligation undertaken by the tenant. It is important to observe the nature of this lease. It must be read fairly. The landlord is, I think, bound to permit the tenant to work for nineteen years on the terms stated if the tenant chooses to do so. It is to him a license to work at a certain lordship per ton. But the tenant, though not taken bound to work, could not, I think, hold the lease for its whole currency without working at all, and exclude the landlord or another tenant from working. If the tenant were to refrain persistently from working,-and so escape all payment of rent,-and yet to insist on occupying under the lease so as to prevent all working by the landlord or by another, I am disposed to think that the lease could, at the instance of the landlord, be brought to an end. But, however that may be, I am satisfied Dec. 10, 1875. No. 45. that the tenant, Mr Walker, was not under absolute obligation to work the minerals during the nineteen years. The proper prestations of a lease are absent. Therefore when Mr Walker assumed a partner, and introduced him into this joint adventure, then nineteen years was not necessarily the endurance of the joint adventure. I cannot so read it. When working this ore on the lordship as stipulated becomes impracticable in consequence of not finding sufficient quantity of ore, then I think that the joint adventure must terminate or be terminable by either party. It could not, in equity, be permitted to one of the joint adventurers to force the other joint adventurer to proceed in a disastrous speculation to the great loss of both. I cannot say that mere difference of opinion as to the possibility or probability of success is a sufficient ground for calling on the Court to declare the joint adventure at an end. On that point I agree with your Lordship in the chair, and I do not quite agree with the Lord Ordinary. I think that we cannot avoid the question of reasonable probability of success, the question on which the parties have led proof: Is there now in Haaf Grunie such an amount of chromate of fair quality as to justify continued working? Or, is it reasonable to hold that continued working cannot be conducted with profit, or indeed, without loss? I cannot hold mere difference of opinion sufficient. I cannot recognise the pursuers' right to terminate the adventure because they doubt the prudence of proceeding. Inquiry is necessary in order to protect the one party from the caprice of the other. But on the answers to the two questions I have indicated the decision of this case must, in my opinion, depend. In the view which I take of the lease, or license to work, and the agreement, the mutual obligations of the parties to the joint adventure cannot be held as continuing for the whole lease, so as necessarily to last for nineteen years. I scarcely think that the defender himself maintained that proposition. On the other hand, the pursuers cannot, at their pleasure, and without reason or explanation, enforce the termination of the adventure. Between these extreme propositions the justice of the case appears to lie; and, I think, there is sufficient support for it in law. The pursuers can, in my opinion, put an end to the adventure, if there has been reasonable trial, and if the result is that the mineral does not exist in this island of such quality and in such quantity as to justify continued expenditure with any fair prospect of success. To force the continuance of a very hazardous, perhaps ruinous, adventure, against the will of the pursuers, would not be equitable, nor would it be in accordance with legal principle. The authority of Professor Bell (Bell's Com. vol. ii. pp. 632–3), and the decisions in the case of Montgomery v. Forrester (June 17, 1791, Hume, 748), and in the case of Barr v. Speirs, 18th May 1802, F. C., and Marshall v. Marshall, 23d Feb. 1816, F. C., are favourable to the pleas of the pursuers, and several decisions in England mentioned by Mr Bell confirm the same view of the law. I may also refer to the English case of Crawshay v. Maule, decided by Lord Eldon in 1818 (1 Wilson's Chan. Rep. 181). Accordingly, it is necessary to consider the proof in order to ascertain the true state of the facts, whether the continued working of this chromate can be conducted with reasonable hope of success. On the evidence in regard to the state of the chromate in Haaf Grunie I confess I have had difficulty in forming an opinion. It is in some respects conflicting, and in some respects unsatisfactory. I do not enter on any analysis of the evidence, which I have carefully read. But I have ultimately arrived at a con clusion unfavourable to the prospects of the adventure, and favourable to the No. 45. Dec. 10, 1875. pleas of the pursuers. I think the joint adventure was not properly an initiatory adventure, not a speculation for searching and ascertaining the ex- Miller v. istence of chromate. The mineral was believed to be, and stated by the Walker. defender to be, in the land, and it indeed was so to some extent. The object of the speculation was to develope it, and work it, and dispose of it profitably. Taking that view of the speculation, I think the result of the proof is that there is not in the land mentioned in this lease, and in the joint adventure, such mineral of the kind specified as can be worked with any reasonable hope of profit. The speculation has up to the present time proved a failure, and nothing but a great outlay and a new and unexpected discovery can make it otherwise. This is the opinion of the pursuers. But not only so, I think it is a reasonable opinion so far as the truth has been or can at present be ascertained. Amid the conflicting evidence I cannot refuse to attach weight to the opinion of Professor Heddle and to the testimony of Mr W. G. Mowat. Mr Walker says he is, and I do not doubt that he really is, of a difierent opinion. He is very sanguine as to the result. If he is right he will now get the whole adventure into his own hands, and then it is hoped he may find it as profitable as he anticipates. But since the date of the joint adventure nothing has occurred to justify this prospect of success. Taking this view of the evidence, and construing fairly the missives which express the agreement of 22d March 1872, I am of opinion that, looking to the ascertained character and position of the minerals, and having regard to the fair ends and objects of the joint adventure, one of the parties cannot insist on continuing the connection and partnership against the wish of the other party, and apparently against the interests of both. The eager and sanguine disposition of Mr Walker may sustain his own efforts amid discouragements, but cannot justify the Court in compelling the pursuers to continue a hazardous speculation, which they, apparently not without some reason, expect to be disastrous. LORD MURE Concurred with the Lord President. THE COURT pronounced this interlocutor:-" Adhere to the said interlocutor so far as it disposes of the reductive conclusions of the summons: Quoad ultra recall the said interlocutor: Find that according to the sound construction of the contract of joint adventure between the pursuers and defender, dated the 22d March 1872, the defender guaranteed that the mine which forms the subject of the joint adventure should within a few years yield profits amounting to at least £2000, which sum was to be applied to repayment of the loan of £2000 obtained by the defender from the pursuers: Find that the said mine has not hitherto yielded any profit, and that there is no reasonable prospect of profits being realised in the future: Find that in these circumstances the pursuers are entitled to put an end to the joint adventure, and to call upon the defender to fulfil his guarantee: Therefore find, decern, and declare that the said contract of joint adventure has come to an end, and in respect it is admitted that the pursuers have retired with their own funds the bills for said advance of £2000, decern and ordain the defender to make payment to the pursuers of £2000, with interest from the date of citation: Assoilzie the defender from the 4th and 5th conclusions of the summons, and decern: Declare and decern in terms of the 6th conclusion; but No. 45. Dec. 10, 1875. Miller v. in respect the sum of £139, 3s. 8d. has not been advanced and paid by the pursuers, but only credited to the defender as an item in an unsettled account, dismiss the action quoad the 7th conclusion, and decern: Find no expenses due to or by either party." DRUMMOND & REID, W.S.--GEORGE ANDREW, S.S.C.-Agents. No. 46. Dec. 16, 1875. Anderson v. Garson. 1ST DIVISION. M. THOMAS ANDERSON, Pursuer.-Trayner. WILLIAM ROSS GARSON, Defender.-Mackintosh. Process-Reponing-Decree by default.-The reponing of a party against whom decree by default has gone out is a matter for the discretion of the Court. Circumstances in which a defender was reponed upon payment of the previous expenses incurred by the pursuer. THOMAS ANDERSON, builder in Leith, and a trustee and member of Ld. Craighill. the "Imperial Building Association," raised an action against the individual partners of that association for payment of £420 and interest, being the amount contained in a bill signed by him and the other trustees of the association on behalf of and for the behoof of the association. Anderson had been compelled, in the first place, to retire the bill under a threat of personal diligence. All the members of the association, with the exception of William Ross Garson, S.S.C., and a Mr M'All, allowed decree in absence to go out against them on 24th February 1875. Garson and M'All lodged defences, Garson acting as agent for both. The case was put out in the procedureroll on 18th May, and again on 1st, 8th, and 15th June. On 12th June the trustee upon the estate of M'All, who had become bankrupt, allowed decree to go by default. On 15th June, the Lord Ordinary, in respect of no appearance for Garson, decerned against him in terms of the conclusions of the libel. On 6th July Garson lodged a reclaiming note against this interlocutor. It was explained for him at the bar that he had not observed the case in the rolls, and, in consequence, his not being represented before the Lord Ordinary was due to an oversight. He therefore prayed to be reponed against the Lord Ordinary's interlocutor. The undernoted cases were referred to.1 LORD PRESIDENT.-There can be no doubt that this is not a decree in absence but one by default, and I am not disposed to depart from anything I said in the case of Arthur v. Bell. It is always a matter in the discretion of the Court (1) whether a party against whom a decree by default has gone out is to be reponed at all; and (2) if so, upon what conditions it is to be done. We have reason to believe that decrees by default go out in cases where the parties or their agents are greatly to blame, and that is no light matter. 1 Wilson v. Stevenson, June 20, 1835, 13 S. 962; Wilson v. Stark, Feb. 17, 1844, 6 D. 692, 16 Scot. Jur. 605; Anderson v. Brown, Jan. 20, 1854, 16 D. 367, 26 Scot. Jur. 175; M'Lay v. Keir, Feb. 24, 1854, 16 D. 658, 26 Scot. Jur.. 309; Hamilton v. Christie, March 11, 1857, 19 D. 712, 29 Scot. Jur. 330; M'Laren v. Robertson, May 29, 1857, 19 D. 769, 29 Scot. Jur. 348; Mather v. Smith, Nov. 23, 1858, 21 D. 24, 31 Scot. Jur. 11; Young v. Mackenzie, July 19, 1859, 21 D. 1358, 31 Scot. Jur. 744; Boak v. Watson, July 14, 1860, 22 D. 1468, 32 Scot. Jur. 666; Arthur v. Bell, June 16, 1866, 4 Macph. 841, 38 Scot. Jur. 440; Shand's Prac. 961; A. S. July 11, 1828 (M'Laren's Proc. Acts, 547). I think this defender should only be reponed upon paying the previous expenses incurred by the pursuer, including those incurred in connection with this reclaiming note. LORD DEAS, LORD ARDMILLAN, and LORD MURE concurred. THIS interlocutor was pronounced:-" Remit to the Lord Ordinary WILLIAM KIDD, Pursuer.-Pattison-Rhind. JOHN WILLIAM BYRNE, Pursuer.-Fraser-Scott. No. 46. Dec. 16, 1875. Anderson v. Garson. No. 47. Dec. 16, 1875. Lease-Reparation-Game-Rabbits-Game Tenant-Relief.-An agricul-Johnson. tural lease reserved to the landlord the sole right to the game and rabbits, with power to himself and his game tenant to shoot and sport on the farm without liability for damages. The landlord let the game to a tenant without express limitation of the amount of game and rabbits to be kept on the lands. In an action by the agricultural tenant against the landlord, held that the landlord was liable for damage to crops arising from an excessive stock of rabbits. In an action of relief by the landlord against the game tenant, held that it was an implied condition of the contract between him and the landlord that he should not keep more than a fair stock of rabbits for the purposes of sport, and that he was therefore bound to relieve the landlord of the damages found due to the agricultural tenant in the other action, and of the whole expenses incurred or found due by the landlord in that action down to the date of judgment in the Inner-House. Observed that the liability of the landlord to his agricultural tenant and the liability of the game tenant to the landlord depended in each case on the contract, express or implied, between the respective parties, and that where the game tenant did not come individually into contact with the agricultural tenant there could be no direct right of action by the latter against the former in respect of injuries by game or rabbits. IN 1864 Mr Byrne of Elshieshields let to William Kidd the farm of 2D DIVISION. Chapelcroft on that estate for fifteen years from 1864. The lease conLd. Craighill. R. tained the following clause :-" Reserving also to the proprietor the sole right to the whole game of every kind, rabbits and hares, and to all the fish in the rivers, burns, lakes, and ponds within the lands hereby let, with full power to himself and to those having his permission, or to the tenant of the game and rabbits, to hunt, shoot, or fish and sport on the farm without liability in damages; and the tenant shall be bound to preserve game of all kinds to the utmost of his power, to interrupt poachers and all unqualified persons, and to give information of them to the proprietor or those acting for him; and the tenant shall not be entitled to keep game dogs of any description, and he shall only be entitled to keep dogs for herding cattle; but no dogs of any kind shall be allowed to go into the plantation or into the ground kept in permanent pasture on which the plantation formerly grew.' By lease dated November 1872 Mr Byrne let to Mr R. Johnson, for five years, the mansion-house, &c. of Elshieshields, "together with the exclusive right of hunting and shooting, sporting, killing game and rabbits, and traversing the said estate and that of Templand and Reidhall |