Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Colonel John Buchan of Cairnbulg v. George Leith, his Tenant
Date: 9 November 1708
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Colonel Buchan having bought the barony of Cairnbulg from the Lord Fraser, in 1703, he, in 1707, pursues Leith, one of his tenants, in his own baron court, and takes out a decreet against him for £344 Scots: and having thereon obtained a decreet of authorization against him before the sheriff of Aberdeen, conform to the rollment of the baron court, and having charged thereon; he suspends, on thir reasons, That, in the baron decreet, he was both judge and party, and in the sheriffs decreet there was manifest iniquity in not allowing his damages and deductions to be proven; and which he now repeats by way of declarator and reduction,—That the Colonel deprived him of his barn, by pulling it down when he had his corns in it, by which, he having no other place, he was forced to remove it to the barn-yard, and thresh it out there, in the open air, exposed to wind and weather; by which he was a considerable loser. 2do,—For a whole summer he led sea-ware to a piece of ground, to dung it, and had 14 horses constantly employed therein; and, when he came to till it, his master stopped and interrupted him, whereby he lost a good crop; by which hardships (the like whereof he alleged were not upon record to be paralleled,) he was lesed in more than £400 Scots; for liquidating whereof he had raised a declarator.
Answered,—The tenants' clamours have drawn out his pretended reasons to a great length, but they are utterly void of all substance: For, as to the first,—He had no right to that barn, but had all other conveniences and accommodations necessary; and it was nothing but absolute necessity that made the Colonel take it down, it being in danger of falling and becoming wholly ruinous. And, as to the second,—He was expressly restricted by his tack to labour according to old use and wont: But so it is, this piece of ground is only a light benty surface of a loose sandy ground on the sea side; and, if tilled, would spoil all the neighbouring land, by the tempestuous blowing of the sea in that part. So his damages are imaginary, and cannot, being illiquid, stop his master's clear liquid charge for his rent, which is not so much as denied; but must be reserved to be instructed by way of process, as accords; seeing they consist in facto, and cannot be instantly verified.
The Lords thought, that tenants could not be obliged to pay their rents, where they had clear grounds of retention on account of damages arising from the very subject by which they are to pay their rent, though they cannot instantly verify them, as consisting in facto; as here the loss he had by wanting the barn and by being stopped from tilling his land: and, therefore, they turned the decreets into a libel, and allowed the tenant all his defences, and to get terms to liquidate his damages, in his declarator, here repeated incidenter, before they would decern him to pay his rent: reserving, till the conclusion, to consider where the calumny lay, that the other party's expenses might be modified accordingly.
