Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROOF - TACK.

Robert Maxwell of Glenarm
v.
William Dorgess

Date: 29 June 1773

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[Faculty Collection, VI. 134; Dictionary, 12, 351.]

Coalston. The proof allowed by the Ordinary was as to the condition of the houses. It is material to have the facts cleared up, both as to the time of building the dwelling-house and building the dikes. As to the clause in controversy, if taken by itself, it does not imply an obligation to build new dikes or houses; yet we ought to examine what followed upon it; as tending to explain the meaning of the parties.

Alemore. Tenants must take houses as they are, unless there is an express stipulation to the contrary. Any other rule would be dangerous.

Alva. How can a corn-farm be possessed without a byre and a stable? The tenant is only bound to repair: therefore, all houses necessary must preexist.

Kaimes. The master is not bound to any novum opus.

Kennet. The circumstances of the case ought to be taken under consideration.

On the 29th June 1773, “The Lords found that the master was not bound, by the clause in the tack, to build any new houses;” altering, in effect, Lord Alva's interlocutor.

Act. A. Crosbie. Alt. G. Clerk, Ilay Campbell.

Diss. Pitfour, Alva, Kennet. [Hailes did not vote, because he desired to see a proof of facts, and inclined not to pronounce upon the meaning of a clause in the abstract.]