Scottish Court of Session Decisions

Subject_1 HYPOTHEC.
Subject_2 SECT. V.

Customs of a Burgh. Hypothec on Goods for the Price. On Cloth or Manufactures. Fishings. Extent of British Statute relative to Hypothec. Builder's Hypothec on the House.

Thomas Lowrie, and the other Creditors of David Maclellan,
v.
James Burns, Assignee to certain Journeyman Wrights

Date: 3 December 1735
Case No. No 45.

Workmen have no real right or preference to other creditors, on account of their reparations done to a house.

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David Maclelan, proprietor of a house at the head of the Cowgate, employed some journeymen wrights to repair it, and thereafter he disponed the same, under reversion, to the said Thomas Lowrie; in which he was infeft, for relief of some obligations in which he was engaged as cautioner with him. Maclelan having soon thereafter failed in his circumstances, his creditors adjudged, and, among the rest, these journeymen wrights for some wages due to them. In a ranking of the creditors, James Burns, as assignee to the journeymen, craved to be preferred on the said tenement. And the topics upon which he founded the preference, were, that the subject was meliorated by their labour; consequently they should be preferable for their wages both to Lowrie and the other adjudgers, seeing the repairs were in rem versum of the creditors; as they could have no fund or hope of payment, if the house had been allowed to go into disrepair. As therefore the other creditors are locupletiores by their labour, it is but agreeable to the principles of justice and equity, that they should be preferred, conform to L. 1. and L. 3. § 2. D. De in rem vers. Stair, B. 1. tit. 8. § 6. and 7. Neither ought it to make any difference, that Maclelan was their employer, seeing the subject itself was disponed to Lowrie during the time they wrought; so that it was properly work wrought for his behoof. Thus, in the case of a master-mason or wright employing journeymen in a piece of work he had undertaken, the journeymen would have action both against their employer and against the proprietor. In the second place, it was pleaded, That Lowrie having obtained a warrant from the Dean of Guild court to repair part of the house, and for which repairs he was preferable to the other creditors, of consequence they should be preferable to him, as having made these reparations, which he as proprietor might have been decerned to make by the 6th act, Parl. 1. sess. 3, Cha. II. And if he were preferable to Lowrie, who had an heritable right to the subject, of course they behoved to be preferable to the other creditors.

On the other hand it was argued for Lowrie, &c. That the work's being profitable for them, can create no preference to real creditors upon an heritable subject; seeing that would resolve into a tacit hypothec, which the law reprobates. Nay, even supposing they had lent money, or furnished materials wherewith the house was built, it could afford them no preference thereon by the law of Scotland; and, if the civil law were to have any influence, it could not vary the argument, as it gives no privilege to workmen on a building for their work. Besides, if it were to take place in this case, several of the creditors, who lent their money to Maclelan, to pay the tradesmen, would be preferable to these journeymen. But, in respect that hypothecs were extended by the Roman law further than is agreeable to our practice, therefore they have not claimed any preference on that account. And, if tradesmen had a preference upon a house for their wages, a purchaser might be liable to pay the price a second time, if any of the workmen chanced not to be paid up.

As to the pretence, that the reparations are in rem versum, that can only be the ground of a personal action against the employer, but cannot affect singular successors, or afford any real right on the subject.

To the second ground of preference, it was answered, That the reason why repairs made in a house, in virtue of the Dean of Guild's warrant, have a legal preference, is founded on a presumed contraction betwixt the Dean of Guild and the repairer, that he shall have a pledge for his reimbursement: An expedient introduced into our law, ne urbs ruina deformetur, but that can noways avail the journeymen, who wrought upon the faith of Maclelan, without relying on the subject.

The Lords preferred Lowrie to the journeymen.

C. Home, No 3. p. 11.