Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. III.

What Proof relevant to take away Writ.

Robert Maxwell of Glenarm
v.
William Burgess in Glenarm

Date: 28 January 1773
Case No. No 125.

Parole-evidence not competent for proving any obligation against the tenant, other than what is contained in the tack.

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In a charge for payment of rent, founded upon a tack, wherein the only mention made of houses was in a clause conceived thus; “and to keep up the dykes and houses on the said lands, and leave them in a habitable condition at the ish of the said tack, they being to be made so at his entry;” the reason of suspension was, that the charger had failed, in terms of the lease, to build a dwelling-house and office-houses upon the farm; and that the claim of rent was compensable with the expenses laid out by the suspender upon workmanship and materials, and his damages, through his not having a house to lodge his family, and otherwise.

Answered; It was specially articled, that the charger should build a dwelling-house on the farm by Burgess's entry; and that Burgess himself should build all other houses he might think necessary, at his own expense; and that the charger, for his part, built the dwelling-house in due time. The agreement he offered to prove by witnesses, who were present when it was made, and other persons to whom Burgess afterward gave an account of it, &c.

“The Lords found, That it is not competent for the master to prove, by parole-evidence, any obligation against the tenant, which is not contained in the tack; and remit to the Lord Ordinary to hear parties farther on the import of the tack, as it now stands; and to do therein as he shall see cause.”

Act. Crosbie. Alt. Ilay Campbell. Clerk, Robertson. Fol. Dic. v. 4. p. 158. Fac. Col. No 51. p. 134.