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.
John Paterson v. James Lesly
Date: 12 June 1712
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James Lesly, brewer at Gravesend, having taken a brewery, malt barn, and lofts, from Robertson, for 600 merks of yearly duty; and the lands, by disposition, coming to John Paterson; he, by Walter Murray, his factor, pursues Lesly for the rent, before the commissaries of Edinburgh. Who, craving allowance for some reparations, and for his damages sustained through the said brewery's insufficiency, being neither water nor wind-tight, by which his victual was exceedingly spoiled, and offered to liquidate the same; they refused to admit it in this process, but reserved him action as accords. Of which decreet he craved Suspension, 011 thir grounds,—That I wanted the use of the houses for which the hire was stipulated to be paid; and, both in equity and common law, you are obliged to keep the brewery in repair. And the Commissaries were injurious in refusing my compensation, and denying me retention for my evident damages: for, L. 19, sec. 1, D. Locati, says well, Si quis dolia vitiosa licet ignarus locaverity deinde vinum effluxerit, tenebitur in id quod interest; nee ignorantia ejus eril excusata, nam, she scisti sire ignorasti, pensionem non petes. And though compensation be not receivable after sentence, yet here it is most competent; for it was proponed, and most unjustly repelled. Likeas, they have summarily detained his haircloth, gantries, and brewing looms, which put him to the expense of renewing them.
Answered,—The Commissaries committed no iniquity; for you got them in good repair; and, if they failed, your legal remedy was by requisition of the setter; and, if he had neglected, then to have craved a visitation from the Dean of Guild, and his warrant; in which case you might have repaired yourself, and got deduction and allowance of it in the fore-end of your tack-duty. But you was so far from taking this method, that you paid your rent without seeking retention. 2do, I am a singular successor; and so not liable for any damages before my right: and these being personal prestations, they can only affect the setter, my author, whom you may pursue to fulfil his part of the tack. And, as to any deteriorations since my right, I am willing to repair them. And, though my right flow from my brother, yet I offer to instruct the adequate onerous cause of my purchase. And, for the hair-cloth, &c. I have offered them back.
Replied,—My payment was on your obligement to allow my reparations, when instructed. And, though the tack be expired, yet the bruiking per tacitam relocationem, you are as much liable as your author was to perform his mutual obligements: for tantum operatur consensus tacitus in casu tacito quantum expressus: and L. 13, sec. 11, D. Locati, et L. 16 C. Eod. says, qui tacuerunt videntur eandem locationem renovasse. And it were a great discouragement to poor tenants, if their master's selling the land should deprive them of their damages sustained in his time, and not reach singular successors: his voluntary deed should not wrong them. And, in the strictest law, all prestations arising ex natura rei follow the thing into whatever hands it comes; and therefore this clause, obliging the setter to keep the house in repair, being both useful and necessary, must affect the singular successor as well as the original setter.
The Lords inclined to think the reparation and damages even followed singular successors; but, the case being new, they remitted it to the Ordinary to be farther heard.
