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.
Subject_2 HYPOTHEC

.

Johnston, Syme, and Scott
v.
George Warden

Date: 10 July 1777

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“THE expense of repairing houses within the burgh, when it is authorised by warrant of the Dean of Guild, is secured by an hypothec on the house repaired, ne urbs ruinis deformetur; but he who repairs without such warrant, and relies on the faith of his employer, has no security on the subject itself.” So says Mr Erskine, p. 425, § 34 ; and he cites Home, No. 3, and 11 New Coll., No. 86.

The latest decision upon the point, is 21 st June 1768, Mack against Drummond, not collected.

But then, it is carefully to be adverted to, that there is a difference betwixt a jedge and warrant granted by the Dean of Guild approving of a plan, and allowing heritors to build agreeably thereto : this species of jedge and warrant is necessary within burgh, in every case ; but this gives no preference to the workmen employed. It leaves every person concerned to employ what workmen he chooses, and the workmen follow the faith of their employer, and are not entitled to any preference for payment of their work. The decree of the Dean of Guild, which entitles workmen to a preference, is of a quite different nature, and in express terms declares, that the person obtaining the warrant and executing the repairs shall have a security or right of possessing the subject, until he is fully reimbursed; and this is the hypothec mentioned by Mr Erskine, and established by the above decisions. But where a proprietor sets about repairing or rebuilding a tenement, although he must, in common course, apply for a warrant from the Dean of Guild, approving his plan, and granting license to build, yet there is no tacit hypothec established by this in favour of the tradesmen, by whom the work is performed. These last have nothing to do with the Dean of Guild's warrant, but follow the faith of their employers.

In consequence of all this, the Lords, 10th July 1777, found, that, where an heritor in Edinburgh obtains from the Dean of Guild a general jedge and warrant for rebuilding or repairing his tenement, and employs workmen who do not, till some time after, get themselves declared preferable for the repairs ;— an heritable debt, though contracted after the general warrant, and even after completing the work, but before the special decree of preference, is to be preferred to the workmen. And they preferred the creditors in such debt accordingly; and found that the creditor, by the jedge and warrant, could not compete with him.

In this decision the Lords avoided determining as to the effect of the jedge and warrant, and decreet of preference by the Dean of Guild, if the heritable bond had not been in the field: they only found, that it could not compete with the heritable bond in the circumstances above mentioned.

See further, Act 1696, another point in this case.

But even as to the general point, of the Dean of Guild's giving a tradesman any hypothec or preference even for repairs, preferable to an after creditor contracting on the faith of the records, some of the Lords, particularly Lord Covington, entertained great difficulty ; and signified so much, not only in the preceding case, but in a petition of Alexander Laing, mason, for a warrant on the sequestrated estate of William Taylor, advised on report by Lord Westhall, 6th March 1779, although the decision went upon another point: so the above was mentioned only incidentally.