Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.

William Campbell, Factor on Craigleith,
v.
William Browne

1775. March .

Click here to view a pdf copy of this documet : PDF Copy

Houses and offices are not contrived merely for the improvement of a farm, but are necessary for its occupancy : they are therefore considered as part of the farm ; and it is established by usage, by common law, and the decisions of our Courts, that the tenant, if no special agreement is made to the contrary, is obliged to uphold them in a sufficient habitable condition during the currency of the lease, and to leave them so at his removal, or, at least, in as good condition as he got them. See Dict., voce Tack, V. II, p. 424.

It has been made a question, how far a similar obligation, at common law, lies upon a tenant with regard to those fences and inclosures which are upon his farm at the time when he enters to it. That he is bound to commit no waste upon his farm, is clear. (See Planting and Enclosing, Stirling of Keir against Christie.) And further, that, by the statute 1698, cap. 16, he is bound to preserve the trees and planting upon his farm, is equally clear ; but still it remains a doubt, how far he is bound to be at actual expense in supporting inclosures ; unless he comes under a special and actual obligation to that effect.

This point occurred in a question betwixt William Campbell, factor on the sequestrated estate of Craigleith, and William Brown, the tenant. The Lords remitted to the Ordinary, to pass a bill of advocation at the tenant's instance, in order that the point might be tried, along with certain other reasons upon which the tenant pleaded retention of his rent, and might receive a deliberate discussion; but this did not take effect, the question having been determined, not upon the footing of the common law, but upon a clause in the tack, which, though very indistinct, the Lords found laid the expense on the master.