The Lords turned a baron's decree into a libel, though given against his own tenants, but it was for a great sum of damages for the tenant deteriorating the land.
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L. Haddo having convened Johnston his own tenant in his own court, before his own Bailie, to hear it be tried, that he had done wrong the time when he was tenant of his lands of————, in riving out the greens and swairds of the said lands, and thereby had damnified the said pursuer his master in great sums of money libelled; and whereupon decreet was given in his own Baroncourt against the tenant, for the sum of 600 merks; letters conform being sought to this decreet, the defender alleging the same to be null, being given by himself in his own Baron-court, he being both judge and party in effect, seeing he was pursuer, and his own Bailie Judge, and the probation behoved to be either by his own men and tenants, who could not be witnesses, being his tenants, or else by others dwelling on other men's lands, and he had no jurisdiction to cause them who are extra territorium, to compear to be witnesses in his court, and if they did, they were the more suspect; and it was a novelty that any Baron in his own court should pursue, and be judge to a declarator of this nature, and of this consequence, to take sentence to himself therein; but it was only proper to have cognosced, tried, and decided in a sovereign judgment before the Lords of Session; and the pursuer replying, That the Baron-bailie was a competent judge to decide in this cause, for wrong done by his tenant, far more than when he is judge in actions for breaking of arrestments, which he may lawfully judge upon; The Lords, in respect of the allegeance foresaid, proponed against the decreet, which they found to be very considerable, annulled the sentence (the same was given parte absente) and reponed the party, to dispute against the same as if it had never been given; and ordained the defender in this judgment before the Lords, to answer to the deeds contained in that libel, sicklike as he might have done ab initio, if he had been pursued here before the Lords.
1633. February 6.—L. Haddo pursues one Johnston, who was his tenant in the lands of Park of Kellie, to refund to him the damage sustained by the said defender's undutiful and unusual labouring of the said lands before he removed off the lands, and after he was warned to remove therefrom, through the riving and tilling of the greens and swairds of the said lands, which were not laboured in time preceding, but were ay kept for the grass and pasturage of the bestial, wherewith that roum was laboured, and for burning of the mosses of the said lands, which were ever reserved for feuel, and for casting of peats to the tenants thereof, whereby the roum was deteriorated in the quantity and sums libelled, which were acclaimed by the pursuer, seeing he alleged, that thereby no tenant might pay the old accustomed duty for the land; and the defender alleging, that this kind of action was a novelty, and not usually heard of before, and so ought not to be sustained, seeing it is lawful to any tenant to labour the land set to him in all the parts thereof, where he is not restrained nor limited by any special condition, betwixt the master and him, as he was not in this case, and that he laboured but conform to the use of the whole country; The Lords repelled the allegeance, and sustained the action; for they found that no tenant, albeit no such condition had been specially made, might by his labouring rive out the old swairds of ground, nor yet burn the mosses, whereby the mosses might be made worse, but that the roum should be left by the tenant, as good when he removed therefrom as the time he entered thereto; and therefore they ordained the fact libelled and the estate of the roum to be tried by gentlemen in the country, who might both consider of the case wherein the roum was at the tenant's entry, and of the facts done by him before his removing therefrom, and of the quantity thereof, and of any damage the pursuer has incurred thereby, against the ordinary form usually kept in that part of the country, in labouring of such roums, and what, in their judgment, the said skaith would extend to, and to report the same thereafter to the Lords, after which they declared they would determine upon the quantity of the skaith, the modification whereof they reserved to themselves, after consideration of the said report and trial taken. See Tack.
Act. Baird.Alt. Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 503. Durie, p. 653. & 669.
