Scottish Court of Session Decisions

Subject_1 HYPOTHEC.

M'Kenzie of Rosehaugh
v.
Crichton, &C

1747, June 19.
Case No. No. 13.

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The question was, whether in rural tenements the landlord has an hypothec in household furniture and other moveables invecta et illata other than corns and cattle. Kilkerran had found that he had not. We could find no precedent in all our books where the point had been determined, only Tinwald thought it had been decided since 1740 or 1741, in some case where he was lawyer, but forgot the names, and Arniston said it was daily practice in the country to assume that hypothec, and yet if it was never so decided before, nor mentioned in our law books, that would be an extension of the hypothec. There was a decision, Harcarse, D. 522, (Dict. No. 42. p. 6239.) that invecta et illata in general in rural tenements, such as cloth or manufactures, were not subject to the hypothec, though in foreign countries the distinction betwixt urban and rural tenements as to invecta et illata seems to be pretty much taken away, and both Stair and M'Kenzie agree that it still remains and is observed with us, but the question is what they mean by invecta et illata? We seemed to agree, that instrumenta fundi though they are not fruits yet are liable to the hypothec as much as labouring oxen, and the great difficulty was as to household furniture. Arniston thought the landlord had jus retinendi on the ground but not to bring them back, nor so strong as in corn or cattle, and Tinwald said he believed the decision he remembered was to the same purpose. The President thought there was a hypothec in ordinary furniture, such as is necessary for a tenant, but not in a gentleman's valuable furniture, as clocks, hangings, &c. and it was said that silver work could not be included in such furniture, (the question was about Campbell of furniture, who after selling his estate took a lease of the mains and mansion-house.) But the opinions seemed to be so various, and we were so uncertain, that we remitted back the petition and answers to Kilkerran, Ordinary, to enquire about the decision that Tinwald mentioned.