Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. V.

Personal Faculties and Privileges, whether they may be founded on directly by Creditors.

Arbuthnot
v.
Sir James Colquhoun

Date: 5 February 1772
Case No. No 103.

Clause in a tack, that the tenant, at his removal, shall be paid the expense of inclosing, is effectual against a singular successor in the land.

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James Arbuthnot, proprietor of the lands of Finart, and others, let a part of these lands to John and Donald Frasers for nineteen years, from May 1751, by a tack which contained the following clause: “And it is hereby declared, that, in case the said John and Donald Frasers, and their foresaids, shall think proper to inclose any of the grounds of the saids lands with sufficient country, dykes, they shall, at their removal, Upon leaving them sufficient, be paid a comprised price for the same, not exceeding one year's rent.”

James Arbuthnot was succeeded in the estate of Finart by his brother Robert; and, in consequence of a destination made by him, upon his decease, the succession was taken up by Mr John Arbuthnot, then an infant. But it was afterwards judged expedient to bring the lands to a judicious sale before the Court of Session, and, in 1763, the estate was sold by authority of the Court, when Sir James Colquhoun became purchaser.

In 1765, an action was brought at the instance of John and Donald Frasers against Mr John Arbuthnot and his administrator in law, concluding, inter alia, that Mr John Arbuthnot should be obliged to pay them a year's rent, being L. 24 Sterling, which, by the above recited clause in their tack, they were entitled to lay out in building country-dykes round their farm; but the Court, by an interlocutor, 14th July 1769, “Assoilzied hoc statu from the claim, in respect that, by the tack libelled, the obligation on the master to refund such expense to the tenant, is not prestable until the removal of the tenant; reserving always action to the pursuers, or their representatives, against the defender John Arbuthnot, and his representatives, for the expense of such dykes, to the amount of L. 24 Sterling, in case such expense shall not be allowed by Sir James Colquhoun, or the proprietor of the lands of Finart for the time, at the determination of the said tack; and reserving to the said John Arbuthnot, and his representatives, their defences, as accords.”

Upon the determination of the tack, Frasers insisted in their claim against Arbuthnot, who called Sir James Colquhoun in an action, concluding that he should be decerned to relieve him of the Frasers' demand, and of the expense he might incur in defending the same; and the processes having been conjoined, the Lord Ordinary, on the 3d July 1771, pronounced this interlocutor: “Finds the said John Arbuthnot liable in payment to the said John and Donald Frasers of the sum of L. 13: 12s. Sterling, with interest of the same, from the term of Lammas 1771, as the value of the dykes, according to the comprisement of the birlieman, in process, and against which no objection is offered, and decerns: But, in respect that there is no obligation in the tack to build the dykes; that the obligation to pay a sum not exceeding L. 24, for the dykes, when built, depended upon an uncertain event, and that it makes not mention of assignees, the Lord Ordinary assoilzies Sir James Colquhoun, and decerns.” And, by a subsequent interlocutor, November 28th 1771, “In respect that the clause in question, although contained in the contract of tack, is an obligation distinct from the contract of tack, and for the reasons contained in the former interlocutor, refused a representation for Arbuthnot, and adhered to his former interlocutor.”

Upon a reclaiming petition, and answers, the Court held that this clause was effectual against a singular successor in the lands, (notwithstanding of the decision, December 17. 1760, M'Dowal of Glen contra M'Dowal of Logie, voce Tack, cited for the defender,) and therefore,

“The Lords altered the Lord Ordinary's interlocutor, and found Sir James Colquhoun liable in payment.”

Act. John Dauglas. Alt. James Colquhoun Fol. Dic. v. 4. p. 75. Fac. Col. No 4.