Scottish Court of Session Decisions

Subject_1 TACK.
Subject_2 SECT. IX.

Privileges reserved to the Landlord.

Russel
v.
John and William Clerks

Date: 24 June 1749
Case No. No. 148.

The heritor's remedy stated when the tenant has no stock on the ground.

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When William Clerk, father to the said John and William, purchased the mailing of Struthers from Naismith of Ravenscraig, Alexander Russel possessed it, upon a 19 years tack, whereof several years were to run, at the yearly rent of 9 bolls and £.40 Scots of money; but the purchaser, wanting to get rid of the tenant, in a most illegal and unjustifiable manner, broke up his barn-door, put a new key on it, disposed of the corns that were therein, his plow and plow-graith, and all this in the month of January, before the first year’s rent he had right to became due, which was not till the Candlemas thereafter.

Russel brought a process of spuilzie against him, wherein he libelled so much as the value of his corns, plow and plow-graith, and so much as the profit he would have made of his tack for the years to run, but of which he was deprived by the said spuilzie, amounting the whole sum libelled to £.2209 3s.4d.; and, upon considering this account, the Lords “allowed the pursuer his oath in litem on the said corns, plow and plow-graith;” and, on advising thereof, “found the defender liable in £.567 Scots ;” which was accordingly paid.

In August, 1740, about a month after this process was ended, Russel brought a new process for the damages in having been ejected out of his farm, and for which he alleged no reparation had been given him in the former action of spuilzie. The defence pleaded before the Ordinary was, That he was dispossessed in consequence of a decree of removing. And it being answered, that he had been dispossessed via facti, two years before the decree, the Ordinary “allowed either party a proof before answer upon that point.”

When this proof came to be advised, it did appear, that the tenant had been turned out of the possession by the spuilzie, and that the decree of removing was not obtained till two years thereafter; nevertheless, the Lords “found no foundation for the process, and assoilzied.”

It was observed, that the defender had paid well for the spuilzie, whereby the case came to be the same as if he had lawfully poinded; and as thereby the pursuer would have been rendered incapable to possess, What was the master to do ? Was he to Let his land lie waste ? That was said to be what no heritor would do, or could be obliged to do, merely because of a possibility that the tenant might thereafter be in a condition to possess, and which, in fact, never happened.

Mean time, although this reasoning for the power of the heritor, in the case, where the tenant’s goods are all swept off the ground, even by the master himself, or his other creditors, by lawful poinding, may be just, yet this cannot well be pleaded as a decision on that point; because as the damage for the want of the possession for the years to run of the tack had been libelled in the process of spuilzie, though the decree may not have specially bore the sum therein decerned to have been on that account, it may have been considered as a sum decerned in full of the whole damage libelled; and in that view some of the Lords took it, and who thought, that, had the defenders been well advised, the act before answer might have been prevented.

Kilkerran, No. 8. p. 536.