Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 3 June 1687
John Hamilton v. Ninian Lowis
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A case, depending before the Bailies of Edinburgh, was brought in before the assessors, and much agitated among the lawyers, between Ninian Lowis, apothecary, and John Hamilton, Duke Hamilton's bailie-depute in the Abbey, who had set a shop, in Edinburgh, to Ninian; but he afterwards falling to be better provided aliunde, sets it to one Brown, who sold ale: and John quarrelled the sub-set on thir grounds:—1mo, That he has a cellar below, and this was in æmulationem vicini, and prejudged their change. 2do, That tacks are strictissimi juris; and so this not bearing to assignees, it was merely personal to himself; and he could not put in another, else he might bring in a rebel, and so render him, the landlord, obnoxious to the hazard of law; or set it to his enemy, or to one so negligent as might endanger it by fire. 3tio, In the present case electa est persona; and both Stair, tit. Tacks, and Craig, are clear, that they cannot sub-set the whole: for one may set off chambers, and parts of their house. Answered,—If I pay the maill, you are not concerned: but here your condition is meliorated; for you have both the tenant and sub-tenant liable for the maill; and the axiom against sub setting is only against assigning, which is a total denuding, and a freeing of the first tenant: but a sub-set is lawful; and was so found 12th March 1686, betwixt Sir James Rocheid and Moody, sub-tenant to Haliburton and Borthwick; though that tack excluded assignees, and was in country lands; whereas this is in prædiis urbanis, where often the tenant is better than the landlord. 2do, Stair adduces no decision, but gives his own opinion. And the Roman law is clear, l. 66 D. Locat. quod nemo prohibetur rem quam conduxit fruendam alii locare, si nihil aliud conventi. And though habitatio be a personal servitude, and of a far stricter nature than locatio conductio, (which is our tacks and assedations,) et bonæ fidei contractus, though stricti juris as to transmission, yet habitationem habentibus permittitur, non tantum in ædibus degere, sed etiam alii locare; l. 13 D. de Usuet Habitat. § 5, Institut. eod. tit. And Sir George Lockhart was of opinion that a tenant might subset. See Stair, 2d January 1672, Lady Binny.
