Page: 233↓
(1815) 3 Dow 233
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1814—15. 55 Geo. III.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION. (2d. div.)
No. 15
LANDLORD AND TENANT.
Where a farm-house was burnt by accident, it was held by the House of Lords, reversing a judgment of the Court of Session, that the landlord was not bound to rebuild.
The Lord Chancellor seemed to doubt whether the having a bed with a wooden frame, and with straw in the bottom,
Page: 234↓
hanging down through the interstices of the spars below, placed within about 40 inches of the fire-place, where there was no fender, did not amount to culpable negligence; and if it was culpable negligence, the generality of the practice, he said, only made it the more necessary so to determine.
Farm-house burnt.
Petition to the Sheriff of Fife to find the landlord liable to rebuild.
Bayne was Proprietor of the Farm of New Miln, of which Walker was Tenant. In March 1806, the farm-house was consumed by fire; Walker gave in a summary petition to the Sheriff-Depute of Fifeshire, setting forth “that on the morning of the fourth current the dwelling-house on the farm of New Miln, possessed by the petitioner, unfortunately took fire, and was burned to the ground, along with almost every article in it belonging to him: that by this accident the petitioner and his family are presently lodging in the house of a friend, at the distance of some miles: that the petitioner applied to William Bayne, Esq. of New Miln, the proprietor, to rebuild the house, which he refuses to do. The present application is therefore necessary.” And the conclusion is as follows: May it therefore please your Lordships, after service of this petition on the said William Bayne, Esq. to find that he is liable to rebuild the foresaid dwelling-house on the farm of New Miln, and to put it in the situation it was before the said fire took place, and to decern him immediately to do so; and failing of his so doing, to grant warrant to the petitioner to rebuild and repair the said house, and to find the said William Bayne liable in the expense thereof, and to allow
Page: 235↓
Judgment of the Court below that the landlord was bound to rebuild, May 30, 1811.
Bayne, the landlord, stated two defences; first, that the fire was occasioned by culpable mismanagement and negligence in the tenant: second, that suppose it had happened by accident, the landlord was not bound to rebuild. The Sheriff after proof decided that the fire was accidental, and that the landlord was bound to rebuild. Bayne then removed the cause by bill of advocation into the Court of Session, where the case was argued at length, and the Court finally decided in favour of the tenant on both points. From this judgment the landlord appealed.
As to the first point, it appeared in evidence in the cause that there was a bed where the fire was supposed to have commenced, in a corner of the kitchen, within 45 inches of the fire-place. This bed had a wooden frame, and there was straw in the bottom of it, where there were openings between the boards so as to permit the straw to hang down. For the landlord it was contended that it was culpable negligence in the tenant to have a bed with such materials so near the fire-place, and it was insisted that the tire must have been occasioned by a live coal starting from the fire-place, where there was no fender, to the straw under the bed. For the tenant it was contended that the fire must, in all probability, have been occasioned by a live coal or cinder carried to the bed on the back of a cat, which was in the habit of lying among the ashes and in the bed, and that it was common in farm-houses in
Page: 236↓
But the point chiefly to be attended to is the second, viz. whether when a farm-house is burnt by accident, the landlord is by the general law bound to rebuild. In the Court below, and at the bar of the House of Lords, the maxim of the Roman law, res locata perit domino, was much relied upon for the tenant, and the cases of Swinton v. Macdougal, Fac. Coll. January 1810.— York Building Company v. Adam, C. Home, July 5, 1741.— Sinclair v. Hutchinson, Kilk. November, 1751.— White v. Houston, Fount. 1707.— Clerk v. Baird, Kilk. July 10, 1741, were cited. The cases where the decision was against the tenant, Hardie v. Black, March 1768.— Maclellan v. Kerr, July 5, 1797, and Sutherland v. Robertson, C. Home, December, 1736, proceeded upon the ground of culpa in the tenant. The case of a life-renter, it was argued, was altogether different from that of an ordinary tenant, and depended on different principles. In the argument for the landlord, the applicability of the maxim, res locata perit domino, was admitted; but it was insisted that the meaning of it was that the subject perished both to tenant and landlord according to the interest of each in the property, and Guthrie v. Lord Mackerston, Stair, 1672, and Adamson v. Nicholson, Fount. 1704, (cases of life-renters) were cited to show that such had been the construction of the maxim. The cases of Hamilton v. ——,
Page: 237↓
Judgment. Mar. 22, 1815.
The important question is whether, supposing the fire accidental, the landlord is bound to rebuild.
Page: 238↓
The meaning of the maxim, res perit domino, is that the subject perishes to each according to his interest in it.
The meaning of the maxim, res suo perit domino, is that no person is bound to answer the consequences of the accident. As to all those who had an interest res suo perit domino, every one being dominus according to the nature of his interest. That appears to be the law in Scotland, and in other countries where they are guided by the civil law, and applies as much to tenant for years as to tenant for life, and others. It would be impossible otherwise that a proper line of distinction could be drawn. It would apply to leases for 1000 years, as much as to leases for 10, 15, or 19 years; and can it be conceived that if a lease were made for 1000, or for 95 years, and the farm-house were consumed by accidental fire, the maxim res suo perit domino could be applied so as to compel the reversioner to rebuild? And yet that must be the case unless the rule were qualified, which I do not see the means of doing so as to answer the purposes of complete justice. A case was stated where it was held that, in the case of a life-renter where the property ceased vi majore,
Page: 239↓
Implied contract between landlord and tenant.
Adamson v. Nicholson. 1704.
1594. c. 226.
Hamilton v. ——, 1667. Stair.
Deans v. Abercrombie,
2 Dict. p. 60.
1809.
Kilk. 1751.
There is no case nor authority of any description in the law of Scotland to show that, where a farmhouse is destroyed by unavoidable accident, the landlord is bound to rebuild.
The next question is whether, from the nature or terms of the instrument, or the nature of the contract, express or implied, the obligation is imposed on the landlord to rebuild in case of accidents by fire. A missive of tack had been granted to the tenant, but was consumed in the fire, and was not
Page: 240↓
Page: 241↓
“Whoever lets is bound to rebuild in case of accidental fire.”
That is carrying the maxim to an extent which would render it altogether unjust and unequal, and it is not warranted by any authority that I can find. As far as I can find by reference to the laws of those countries where the civil law is applied, the rule amounts to this, that if a tenant is not bound by covenant to remain, notwithstanding loss by accidental fire, distress of enemies, &c. the consequence is that he may abandon, as he cannot enjoy the subject as before: he therefore has the right of migration as they express it. The justice of the matter amounts to no more than this, that the tenant should have an allowance equal to the diminution in value of the subject, by the loss of the house during the term. But the suit here is to compel the landlord to rebuild, or to pay the expense of rebuilding. Looking at the cases cited, it appears to me unquestionable that, in cases of accident, the Courts in Scotland have generally applied the rule as I conceive it ought to be applied. In Guthrie v. Mackerston, 1672, Stair, a jointure
Page: 242↓
Page: 243↓
Page: 244↓
May 12, 1815.
First point, Negligence.
Second point, Whether the landlord is bound to rebuild.
Perilous situation of landlords, if bound to rebuild.
Meaning of the maxim, res perit domino.
Page: 245↓
Page: 246↓
July 3, 1815.
Formal judgment.
The landlord not bound to rebuild.
Judgment of the Court below reversed.
“The Lords Spiritual and Temporal in Parliament assembled, find that the Respondent by his petition to the Sheriff-depute of Fifeshire required that it
Page: 247↓
Solicitors: Agent for Appellant, Campbell.
Agent for Respondent, Spottiswoode and Robertson.