Sutherland of Rearquhar, v. Mr Francis Robertson, Minister at Clyne
Date: 14 December 1736 Case No. No 63.
Found that one, who was bound with another to leave a house in the same condition they received it, was liable, it being burnt by the fault of the other.
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Rearquhar sets to the Mistress of Gees, and the said Robertson, her son-in-law, his lands and mansion-house of Rearquhar; the chief articles of which, so far as concerns the following dispute, were; “That they should leave the mansion-house in as good condition as they received it; and likeways the lands, at their removal, in as good tenantry as they got the same: As also, Rearquhar obliges himself to keep them in peaceable possession of the lands, &c. during the currency of the lease; for the which causes, and on the other part, the said Mrs of Gees and Mr Robertson, for himself, and as taking burden in and upon him for her, bind and oblige them conjunctly to content and pay, &c.” Pursuant to this tack, the Mrs of Gees entered to the possession of the Mains and mansion-house of Rearquhar; which last being soon thereafter burnt down, Rearquhar brought an action against her and Robertson for repairing the damage; wherein “the Lords found, upon advising the proof adduced for both parties, That the defenders were in culpa, in ordering fire to be put to a heap of rubbish, or crumbs of peats near to the house, and suffering the same to continue burning for several days together, immediately before, and on the day the house was burnt; and, no other cause of burning the house being proved, find it must be presumed to have been occasioned by the burning of the said heap; and therefore,” &c.
Robertson reclaimed, and pleaded; That, as he resided in his parish of Clyne, twelve miles distance from the house, and had no knowledge of, nor accession to burning the same, he could not be liable for damages arising from the Mrs of Gees delict. To enforce which, it was argued, 1mo, That, when a house possessed by a tenant is burnt down, he is not thereby, without any thing further, liable to make good the heritor's damages: The general presumption of innocence throws the onus probandi upon the heritor, and, if he fails, the loss must lie on himself; a principle which is also established by the above interlocutor. And, as a consequence of this, it was argued, 2do, That, though a tenant is bound to keep the houses in a habitable condition, and to leave them so at his removal; yet such obligation will not subject him to the damages arising from fire, the import thereof being no more than sartum tectum servare; 3tio, Where a tenant's house is burnt down by the deed of a third party, he is not bound to make good the damage, no more than if the conflagration had happened by lightning; for instance, a tenant is not liable for the delict of his servants, noxa tenet suos quctores; and, 4to, Upon this principle, when it appears by the conception of the tack, and the situation of the parties, that it was not intended the tacksman should possess by himself, but only by others; in such a case, if the houses should happen to be burnt by the act and deed of the possessors, they, and not he, would be liable: Now, to apply these things to the present case, it is obvious, from the clause in the tack, “whereby the tenants are obliged to leave the lands at their removal in as good tenantry as they received the same;” that it was not understood the tacksmen should enter to the natural possession, seeing, with respect to himself, it could not be the duty of his office necessarily charging him to attend his charge at twelve miles distance from Rearquhar; so that this lease was rather an assignation to the rents, than a proper tack of the lands; wherefore, as he would not have been liable, if any of the tenants had wilfully or carelessly burnt their houses, so he ought not to be answerable for the delict or culpa of the Mrs of Gees, who, though joined in the tack with him, does not sign it; and, although he put her in possession of the house and Mains, it does not follow that he ought to be liable for her delicts any more than he would have been answerable for the culpa of any other tenant. It is true, that, if she had allowed the house to go into disrepair, he might have been liable ex contractu; but here the casualty arose from the delict; consequently it can affect none but herself.
Answered for the pursuer; By the tenor of the tack, it was plain, both Mr Robertson and the Mrs of Gees were conjunct tacksmen of the whole lands, &c. and that they might have taken the same into their possession, the pursuer being bound to maintain and protect them therein; nay, the clause obliging them to leave the lands in as good condition at their removal, &c. was calculated for that very purpose, viz. in case they should turn out all the tenants, that, in such an event, they became bound to bring in others as good as them in their place; but, allowing the fact to be, that the tacksmen were not to enter to the natural possession, it cannot avail Robertson, seeing, with regard to the mansion-house, both of them were bound to leave it in as good condition as they received it; and it is obvious, that, as he took the whole burden on him, and is the only signing party to the tack, so he was looked on as the sole tacksman; a security without which the pursuer would not have entered into the bargain, considering the Mrs of Gees's circumstances are so low, that it would have been improper to have relied on her; in consequence, therefore, of this obligation, the defender was bound to take care that no damage, arising either from his own or her fault, should befall the house, and to provide against every accident which might have been easily prevented. And here the Mrs of Gees ought to be considered as a sub-tenant for whom Robertson is answerable, conform to the doctrine laid down, L. 11. De loc. cond. and by Sande, Lib. 3. Tit. 6. De fin. 9. It is in vain then for the defender to shelter himself under the brocard, noxa tenet, &c. since he came under the same obligation with her, viz. to prevent, to the utmost of his power, the ruin of the house; nor can his living at some distance palliate the neglect, seeing he ought to have inquired often about the condition of the farm, which, if he had done, the fatality that happened might have been prevented. Neither is there any foundation for distinguishing betwixt the present case, and the allowing the house to go into disrepair; seeing what the pursuer insists upon is, That, by virtue of the defender's personal obligement, he became bound equally with the Mrs of Gees, as for himself, to take care to protect the mansion-house from all dangers and hazards whatsomever; and, as he would have been liable in the case figured, because of her culpa, for the same reason, the like judgment falls to be given in the present question; especially as he cannot pretend that he acted the part of a diligent man, in allowing the house which had been set to him, and consequently under his care and protection, to be in such imminent danger for upwards of twelve days, the time which the peat-dross continued to burn.
The Lords found Mr Francis Robertson conjunctly and severally liable with the Lady Gees.
