Omnia invecta et illata stand hypothecated to the landlord for his rent in urban tenements, nor can the tenant remove his furniture, unless he find caution for a year's rent.
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The Countess of Callander having set a lodging in Edinburgh to Sir George Campbell of Cesnock, and he dying within the year, his lady possessed the house till the Whitsunday thereafter, with her family, and offering then to remove her plenishing, the Countess obtained a warrant from the bailies to arrest and sequestrate the same till the year's rent were paid; but on application made by the Lady Cesnock, the bailies took off the sequestration, and ordained the household furniture to be delivered up to her, she finding caution to pay the year's rent, in case she should be found liable to do the same in law. Of this ordinance the Countess gave in a bill of suspension as iniquous, seeing it tended to loose the security of all masters and landlords, and to enervate their tacit hypothec upon the invecta et illata; and whatever might be said if caution had been simply offered for the house-mail, yet this conditional and qualified offer to pay, if she were liable in law, was wholly elusory, and would engage the Countess in a tedious and expensive plea to prove the passive titles, &c. Answered for the Lady Cesnock, she was neither the taker of the house, nor liable for the rent; that being a debt upon her husband, and his representatives, who were solvent, and that the plenishing was her own in property by a disposition; 2do, The defunct had given his ticket for the rent, which was a sort of novation, and passing from, the legal hypothec, and a relying on his personal security; 3tio, Some of the goods arrested are a part of her daughter Captain Gordon's Lady's wearing-clothes, who coming only for a visit to her mother, et non animo remanendi, her clothes could not be a subject affectable by the hypothec. Replied, It is an uncontroverted principle, both in the common law and ours, that all goods inbrought into houses within burgh are under a tacit hypothec to the heritor for security of his rent, as appears from l. 4. D. De pactis, and observed by Dury to have been so decided, Dick against Lands, No 47. p. 6243.; otherwise landlords would be very insecure, it being on the faith of the invecta et illata, that they set their houses, without examining whose property they are; yea, in grass rooms, it has been extended to goods put in only for pasture; but here the plenishing belonged to Sir George, who took the house, and his disponing it to his Lady cannot take away the hypothec; and as for his ticket, it was no innovation, but only a liquidation of the rent. The Lords inclined to find the sequestration of the plenishing could not be loosed without caution for the rent simply, without any such quality and condition as was annexed here, and that the furniture et omnia invecta stood hypothecated for the house-mail; but in regard it was thought hard to detain the daughter's wearing-clothes on that ground, the Lords superseded to give answer to that point, till it were tried, if the plenishing besides would be sufficient to pay the rent, without the wearing-clothes.
Fol. Dic. v. 1. p. 419. Fountainhall, v. 2. p. 183.
