An episcopal non-jurant chapel having been demolished by the King's army during the rebellion 1745, the congregatiou, who held the, house in lease, were found liable for the rent, quia culpa pręcederat casum, in not praying for the King.
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The treasurer of the Episcopal congregation in Elgin, for himself, and in name and for the behoof of the said congregation, became tacksman of the mason-lodge there in the year 1734, for the space of 5, 7, 9, or 11 years, in the option of the said congregation, commencing from April 1. 1734, at 100 merks of yearly tack-duty; and the house was to be delivered back at the expiration of the tack, whole and entire in lights, &c.
It happened that the King's army, in their march to Inverness, demolished this meeting-house, broke the glass and timber of the windows, and did otherways considerable damage to the house.
In the action brought in 1747, at the instance of Robert Sinclair the then master of the lodge, against Thomas Hutchison, then treasurer to the congregation, for three years’ rent precediug April 1747, and thereafter during their possession, and for the damage done to the house; the following questions occurred, 1mo, On whom the damage done to the house was to lie; on the proprietor or the colonus. On the one hand, it was casus fortuitus quem non præstat colonus; on the other hand, culpa præcederat casum, in not praying for the King and Royal Family.
But as that was not a culpa, naturally or justly productive of the casus, which was in itself an irregular action, and not a lawful consequence of not praying for the King, the Lords “found the defenders not liable for the damage.”
The next question was, Whether they were to be liable for the rent for the year between April 1. 1746, and April 1. 1747? Former years the defenders did not controvert; and longer they could not be bound, as in that year the process was raised, wherein the defenders pleaded not liable, which was a sufficient upgiving.
Upon the one hand it was said, that they should be liable for that year, as they had retained the keys, and not given up the possession till they did it in the process, as has been said, which was not commenced till some months after the year was begun.
On the other hand, a difficulty was suggested from the Bench, That as it was now found, that the landlord was to bear the damage, the tenant could not be liable for the rent, when the landlord had not repaired the house, till which was done, it was not habitable. But it being also observed from the Bench, that there had been no requisition to the landlord to repair, who had therefore reason to think that the congregation was to do it, and to retain the expense out of the rent, and which was said to apply to every case of a repair incumbent upon the landlord; the Lords “found the defenders liable for the rent of the year between April 1746 and April 1747.”
Fol. Dic. v. 4. p. 63. Kilkerran, (Periculum.) No 7. p. 381.
