The lessee of a malt-kiln found liable in damages, where it was burned in consequence of his negligence.
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John Kerr and William Irvine hired a malt-kiln from Robert Maclellan, at a guinea and a half, for three months; and obliged themselves to leave it in as good order as when they entered to it.
The upper part of the pot of the kiln, or place where the fire is put, was constructed of lath and plaster.
The kiln had not been used for some years; and on the second night of its being used by the lessees, their maltster left it at 12 o’clock, while there was malt, and a fire in the furnace. Next morning the kiln was discovered to be on fire, and was totally consumed, owing, it was supposed, to the lath having been kindled by the heat.
Maclellan brought an action of damages against Kerr and Irvine.
A proof was taken.
The Lord Ordinary found damages due, ‘in respect it is proved, by the oath of Bryden, the manager, that he was informed part of the kiln was finished with lath and plaster; and on the night on which it was burned, he left it at 12 o’clock at night, without any other person to watch it.’
A petition against this interlocutor was followed with answers.
The pursuer founded both on the express obligation of the defenders to leave the subject in good order; Durnford's Reports, Bulloch against Dommit;* and on their negligence in leaving a kiln, so constructed, at night, without a watch; Vinnius’ Inst. lib. 3. T. 25.
The defenders maintained, that a tenant is in no case liable, where the subject is burned by accident; and contended, that the fire, in the present case, was occasioned by the improper construction of the kiln, which, though known to their servant, was concealed from themselves; and that it was not usual to watch kilns in the night time.
A considerable majority of the Court thought there was sufficient evidence of negligence on the part of the defenders to support the interlocutor; and on that ground adhered.
* The Reporters do not, in any case, vouch for the accuracy of references to authorities from the Law of England.
Lord Ordinary, Swinton.Act. Ja. Ferguson, jun.Alt. Cha. Brown.Clerk, Sinclair.
Fac. Col. No 43. p. 101.
