Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HYPOTHEC.
Subject_3 Extent of preference for repairs under a jedge and warrant.

William Johnston and Others
v.
George Warden

Date: 9 July 1777

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[Supp. V. 479.]

Hailes. The controversy here appears to be occasioned by two different things being vulgarly called by the same name of jedge and warrant. No man can touch his own house, in the way either of demolition or reparation, without the authority of the Dean of Guild, and this authority is called jedge and warrant. Any thing done in consequence of this authority is legally done; but the persons employed by the proprietor either to demolish or repair, have no hypothec on the subject,—they are just in the state of common tradesmen. There is another thing called a jedge and warrant: When the Dean of Guild, as an officer of police, empowers certain persons to execute work about a house, they have a hypothec, or preferable right, for payment of their labour, and indeed they would not work without such privilege, for the Dean of Guild, acting as a judge, could not be personally bound in payment.

Braxfield. Attempts have been made of late to bring back upon us a part of the Roman law, which is not consistent with the commercial interests of this country. Here there is a jedge and warrant granted to the proprietor: it is absurd to say that the proprietor can have a real lien. Although a person, other than the proprietor, should get a real lien, by a jedge and warrant, that lien will not go to the tradesman whom he employs.

Gardenston. The jedge and warrant is nothing more than an order of the Dean of Guild to the proprietor for building consistently with the police of the burgh. Lord Hailes has properly stated the distinction.

Kaimes. This point has not even an appearance.

Justice-Clerk. It is my wonder that lawyers should have been so ingenious as to darken this point. The case of Donaldson, when rightly understood, is against the tradesmen.

On the 9th July 1777, The Lords found that the tradesmen, employed by law, have no preference in virtue of the jedge and warrant.

Act. Ch. Hay, R. Sinclair. Alt. R. Blair. Reporter, Covington.