Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
George Suitty v. Robert Bell
1672.
July.
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In the same month of July 1672, in an action pursued before the Bailies of Edinburgh, by George Suitty against Robert Bell, (but which was truly managed by Robert Burnet against him,) for removing from a writing chamber, conform to a warning forty days before Whitsunday, by chalking the doors, as use is within burgh: it was alleged for the defender, 1mo, No process, because the pursuer is not sufficiently authorised to pursue; in so far as George Suity, merchant, the alleged tutor, with whose concourse this action is intented, has given no warrant, and declares he knows nothing of it., 2do, Esto he did own it, his concourse is not sufficient, because it is offered to be proven the pursuer is past his years of pupillarity, and so ought to choose curators. 3tio, Esto he had curators, the warning is null, because it is offered to be proven by the said tutor his oath, that he never gave warrant for warning of him; without which, or a warning from one having power, the defender is not obliged to remove.
To which it was answered, for the first and second, he will choose his procurator curator to him ad hanc litem. And which the bailies sustained eo ordine. To the third, the pursuer condescends upon William Shaw, by whose warrant the warning was used, and who had power so to do as factor, and who used to set the chamber aud uplift the mail. This answer the bailies found relevant.
Whereupon we were put to reply, 1mo, That a factor has only power to lift rents, but no power to warn tenants, except it be expressly given him. 2do, Any warning used by William Shaw's direction ought not to be regarded, because passed from, in so far as, after the same, he declared he was satisfied the defender should stay and continue his possession; and, in regard he had taken arles from Robert Burnet, as having set the chamber to him, he went, forty days preceding Whitsunday, rebus integris, and offered the same back again, upon all which instruments were taken: and it is certain, any indirect act interpreting the master's, or those having his commission, their will, that the possessor warned sit still, infers tacit relocation, and imports a discharge of the warning; tacit relocation being inferred from deeds oft times containing no such express declaration of the master's will as this alleged one does; nam dispositum in uno ex correlativis debet et obtinere in altero, cum eorum eadem sit natura. And as by an immemorial custom within this burgh, it has been permitted to tenants, who have taken houses any time before law-sunday, to give them over without any hazard; so, beyond all controversy, in common justice and equity, this privilege ought to be equal to the master as well as the tenant.
It came to no decision. But I find Sir George Lockhart and others positive that there is no such custom: at least nunquam fuit judicio contradictorio vallata; but suppose it had been so, that it was irregular and dissonant to the principles of law, by which, after I have taken a house and given arles thereupon, I have made a perfect, complete, and consummate bargain, and from which neither party can resile except by consent, there being no more locus pænitentiæ. If it be objected that tacks, and such like contracts and agreements, are not perfect till writ intervene thereupon, and the same be delivered, and, till then, either party may repent; I answer, that is indeed true; yet a verbal tack, entered into without any solemnity of writ, is sufficient and obligatory for a year amongst the parties, and they will not be permitted to resile therefrom during that space. And though this be justly called in question, yet it is a rooted opinion of a long time that tenants may do it; and it has been oft practised, though never drawn in dispute, at least has never found a decision, and therefore would, I think, assoilyie any who use it, till by a law, or a solemn decision, it were found unlawful, and which ought only to regulate pro futuro. Vide supra, No. 284, [Duff against Forbes, 5th December, 1671.] But the other must be much more dubious, if a landlord may give over his tenant, it having been less practised, and scarce laid claim to by any; yet, if the first stood on solid foundations, the same parity of reason would also seem to militate here; for, why should the master be in a worse condition than the tenant? Why should the law be more a stepmother to him, she being equally confident and indulgent of all who stand in pari casu?
In this action it fell incidentally to be talked, if a pursuer, finding himself delayed or otherwise lesed and injured in an inferior court, might advocate his cause to the Lords, as well as a defender. I never saw any of them attempted, and I think them scarce regular: for a pursuer, any time before litiscontestation, is master of his own process; and if he please not the measure of justice he is like to get there, he may take up his process and intent a new pursuit before the Lords, which is a more natural way than to bring it in by way of advocation: though I cannot see it could be refused, if a pursuer should desire to advocate an action to the Lords, he declaring he passed from that instance he was pursuing before the inferior court. I hear the Lords have lately permitted a pursuer to advocate upon inequity done him.
