Tenent must repair the houses, and is entitled to no allowance for expenses laid out in them for his own accommodation.
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These Whites, at their removing, having left the houses and mills ruinous, he takes a decreet against them for £.280 Scots, in his own Baron-court, as the damage sustained by him; and, by poinding, obtains payment. They raise a reduction of this decreet, and conclude repetition and re-payment. The decreet being turned into a libel, there was an act, before answer, allowing a conjunct probation, what condition the houses were in at their entry, and how far deteriorated at their removal; and the testimony of the witnesses coming this day to be advised, it appeared, that, as to some of the houses, they were out of repair at their entry; but that £.18 or £.20 Scots would have made them sufficiently habitable, and wind and water tight; and that they were 200 or 300 merks worse at their out-going; but as to the other houses, they had meliorated and improved them considerably, for which they craved compensation, to elide the damages by suffering the other houses to fall into decay. The Lords found, That whatever reparations or meliorations a country tenant made upon the houses, if habitable, for his own easier dwelling or accommodation, as striking out new windows, or glazing them, or making a halling to break the wind, &c. he could claim nothing on that account: The master was obliged to him, but he could not retain his rent on that pretence; neither could he demolish or take them away, which is allowed to one who builds on another man’s ground, but not to tenants; and likewise found, by the nature of the contract of location and conduction, the tenant was bound to leave the houses in as good a condition as he gets them, and to uphold them during his stay, unless there be a particular paction derogating therefrom, such as the master’s being obliged to furnish the couples and great timber, as the custom is in some places. But no such paction being alleged, the Lords took a middle course betwixt the probation led by either party, and modified the damages Sir John Houston had sustained, by leaving the houses at their departure in a ruinous condition, to 260 merks, turning the pounds in his decreet to merks, allowing and deducting the £.20 deponed on as insufficient when they entered; and decerned him to pay the superplus he had poinded for, more than this restricted modification extends to, being the third of the whole sum decerned for.
Fol. Dic. v. 2. p. 424. Fountainhall. v. 2. p. 405.
