Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WARRANDICE.
Subject_3 Whether a proprietor is bound by a general clause of warrandice to relieve his tenant of a thirlage?

Andrew Cranston
v.
Joseph Symington

Date: 14 January 1780

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[Fac. Coll. VIII. 192; Dict. 16,637.]

Braxfield. Supposing thirlage to have been constituted, I think that the landlord is not liable on the warrandice of the tack: were he liable, the greater profit that the tenant made of his malting, the greater loss would the master sustain. The question is, Whether does the warrandice in a lease imply an ex emption from the consequences of the thirlage: the tenant must certainly carry his grain to some mill. The master warrants that the tenant shall possess the subject, but not that he shall not be obliged to carry his grain to some mill. The master ought to have mentioned the thirlage to the tenant; but then, on the other hand, the tenant ought to have inquired whether there was a thirlage. The one was just as naturally to be adverted to as the other.

Kaimes. According to the defender's argument, the master, instead of reaping profit, might be obliged to pay to his tenant what is equivalent to a rent All that the tenant can demand, is to be relieved in equity from his lease, on the footing of casus incogitatus.

Monboddo. The extent and consequences of the obligation do not move me; for I can suppose a case in which eviction will go beyond the value of the subject let. If the tenant knew that the lands were subject to Thirlage, The warrandice will not be incurred.

Covington. In the country, a tenant may naturally suppose that the lands which he possesses are thirled; but there is a wide difference between that case and the case of invecta et illata in an urban tenement. Such thirlage is un-favourable, and not to be presumed. Both parties are to blame; the one in not mentioning the thirlage, and the other in not inquiring about it. This is a casus incogitatus.

Gardenston. It is a clear rule, that all real servitudes are burdens on tacks. This is certainly the case as to roads: and so also as to thirlage. I cannot distinguish between thirlage in a rural and in an urban tenement.

Hailes. If the defender did not know of this thirlage, his case is singular; and he is the only brewer of that quarter that is ignorant of it. In the course of this century it has been the subject of two decreets in foro contentiosissimo; and it has been supported by different decreets of the Barony-Court. Cranston could not defend Symington against the owner of the thirlage; for his own author had been a party in the former action, and had failed after a most obsti nate defence. Why should the subject in question be called an urban tenement? It is in no other sense an urban tenement than that contiguous houses have been erected within the barony of Broughton.

President. It would be dangerous to enter into inquiries concerning the knowledge of the landlord and the ignorance of the tenant. The landlord let the tenement, but he did not warrant against thirlage: he did not warrant against burdens on the materials used in the work. The tenant had only his rent to pay, whether he malted more or less.

Justice-Clerk. The reason why a tenant is not entitled to recur on the warrandice, as to thirlage, is, that the landlord warrants the possession not the mode of the possession.

Kennet. I have a tenant who distils 12,000 bolls of barley each year but I do not warrant him from thirlage; I only warrant the tacks.

On the 14th January 1780, “The Lords found the master not liable.”

Act, A. Wight. Alt. G. Ferguson. Reporter, Covington.

Diss. Monboddo, Covington. [1ord Covington was not satisfied as to the evidence that a thirlage existed; which, however, is a thing of the utmost notoriety.]