A party building in virtue of a jedge and warrant, must restore the subjects as soon as the sums disbursed by him have been recovered out of the rents.
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The predecessors of David and Margaret Burt having, under the authority of the Dean of Guild, rebuilt a house in the town of Perth, which belonged to David Gregory, he brought an action for recovering possession; alleging, that the money laid out in building had been fully repaid out of the rents.
Pleaded in defence; The law authorising the rebuilding of ruinous houses within burgh, was intended as a punisnment on negligent proprietors, and at the same time to encourage other persons to employ their money in this way, ne urbes ruinis deformentur. When, therefore, it is declared, as has been done in the present case, by the sentence of the Dean of Guild, that the builders shall retain possession ‘until the full sums laid out by them are paid,’ it is obviously meant that the rents shall belong to them, till the owner appears and makes payment of what has been laid out. Without this, no one would be so imprudent as to employ his funds in this manner, as he could not in any event receive more than he had actually disbursed, and at the same time might lose every thing, if by any accident the buildings were destroyed.
Answered; If it had been intended to encourage mere money-lenders to employ their wealth in the reparation of ruinous houses within burgh, the defender's argument would undoubtedly be of some weight. But the framers of this regulation had nothing more in view, than to give to tradespeople an opportunity of getting employment for themselves; knowing that this would be a sufficient inducement to them. The words uniformly used in the proceedings before the Dean of Guild, obliging the builders to make restitution as soon as the sums disbursed by them shall have been paid, would alone be enough to show this to have been the intention of the law.
The Lord Ordinary found, “that the defenders were obliged to cede the possession, on receiving the sums ascertained by the decreet of the Dean of Guild to have been disbursed in rebuilding the house, so far as they have not been compensated out of the rents.”
After advising a reclaiming petition for David and Margaret Burt, with answers for David Gregory, the Court not unanimously affirmed the judgment of the Lord Ordinary.
Lord Ordinary, Braxfield.Act. Cha. Hay.Alt. Ro. Craigie.Clerk, Sinclair.
Fol. Dic. v. 4. p. 199. Fac. Col. No 37. p. 61.
