Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Thomas Moffat and Margaret Murray v. Robert Milne and Andrew Paterson
Date: 23 July 1697
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Arniston reported Thomas Moffat and Margaret Murray, his mother, against Robert Milne, mason, and Andrew Paterson, wright in Edinburgh. Moffat being heritor of a shop and tenement at the head of the West-bow, near the Weigh-house, and Mr Milne having acquired in all the adjacent lands, thereon to erect a new square, he obtains a warrant from the Dean of Guild to value and appreciate Moffat's lands among the rest, and then throws them down, and erects his fabric. Moffat now pursues for repossession of his own houses; and, in regard that is now imprestable, he pursues for the true value, refusing to stand to his sham valuation; and craves juramentum in litem for his damages.
Answered,—What they did was auctore prœtore; and, he being then minor, they had no other redress but to apply to the Dean of Guild. And, by the 5th Act 1663, magistrates of burghs are authorised to dispose of ruinous houses; and, by the Acts of the Town-council of Edinburgh, and the Act of the Privy Council following thereon, ratified in Parliament, the form of building in stone is prescribed; and the lesser part must yield to the major, which is declared to be, not by the number of the heritors, but by the quantity of the rent; else one pervicacious landlord might stop a whole design; and, in the building both of the Tron-church and the Parliament-house, heritors were compelled to sell their interests; and was so found in the late case between Mr William Dundas, advocate, and Thomas Wylie's children.
Replied,—The pursuer was not in the case of the Act of Parliament 1663; for that only took place where houses were ruinous for some time, whereas thir were actually inhabited; neither was the method prescribed by that Act followed. And, for the proclamation in 1674, that obliged only the heritors subscribing, whereof he nor his authors were none; and, under the pretence of decoration of the burgh, and of public good and utility, property must not be invaded; nor can the Dean of Guild or private persons, on such pretexts, throw down houses without the heritors' consent.
The Lords inclined to think what the defenders had done was unwarrantable; but, in regard it was no other ways now reparable, save by satisfying the pursuer, they ordained some of their number to adjust the price, and see the heritor satisfied for his interest to the full; but refused to allow him his juramentum in litem thereupon.
